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App. Div.]

First Department, November, 1911.

entered in the office of the clerk of the county of New York on the 14th day of June, 1911, vacating a warrant of attachment theretofore granted herein.

Frank Walling, for the appellant.

Holmes Jones, for the respondent.


This is an action on contract to recover a sum of money only, which it is alleged in the complaint was due and owing, but non-payment of the indebtedness was not shown by competent evidence. The memorandum written by the learned justice presiding at Special Term when the order was made vacating the warrant of attachment shows that the order was granted on the ground that it was essential for the plaintiff, not only to allege non-payment, but to present proof thereof.

The authorities uniformly hold that it is necessary for the plaintiff in such an action to allege non-payment, but this is a mere rule of pleading, and for the reason that payment must be pleaded or proved as a defense the denial of such an allegation does not make it an issuable fact and forms an exception to the rule that a denial of a material allegation puts the same (Lerche v. Brasher, 104 N. Y. 157, 161; Lent v. N. Y. & M. R. Co., 130 id. 504; Essex County Nat. Bank v. Johnson, 16 N. Y. Supp. 71.) The rule seems to be established by a concurrence of the views of the majority of the court in Conkling v. Weatherwax (181 N. Y. 258), that in an action to a specific sum of money due on contract, as distinfrom an action to recover a balance due where the

in issue.


for the

guished complaint declares generally on an indebtedness, it is sufficient plaintiff to allege non-payment without tendering proof thereof and that payment is not to be presumed but is a matter of defense.

The case at bar, I think, falls within this rule, for it is an action on an account stated. The confusion has arisen over the fact that the basis of the account stated was a balance owing on an existing account. The action is on an assigned claim of the Property Insurance Company, Limited, to recover the sum of $1,214.31, the balance due and owing on an account stated,

First Department, November, 1911.

[Vol. 146.

rendered by the defendant, who was the agent of the plaintiff's assignor in issuing policies of insurance covering risks in various parts of the United States and Canada, and in collecting premiums thereon. The account stated rendered the defendant liable on contract for the payment of a specific amount, the same as on a promissory note, or on a bond, and the fact that part of the indebtedness due on the obligation has been paid does not bring the action within the exception to the rule. (Acharan v. Samuel Brothers, 144 App. Div. 182.) It was sufficient, therefore, for the plaintiff to allege nonpayment, without presenting proof thereof, on his application for a warrant of attachment.

The plaintiff sufficiently shows that he is entitled to recover the amount over and above all counterclaims known to him and this answers the requirements of section 636 of the Code of Civil Procedure without showing that he was entitled to recover said sum over and above all counterclaims known to his assignor. (Selser Brothers v. Potter Produce Co., 80 Hun, 554; affd., 144 N. Y. 646; Crowns v. Vail, 51 Hun, 204.) The respondent also contends that the warrant of attachment was properly vacated on the ground that the plaintiff did not show that his assignor was authorized to do business in the State of New York, as required by section 9 of the Insurance Law, and on the further ground that the defendant was prohibited by section 50 of the Insurance Law from acting as its agent. (See Gen. Laws, chap. 38 [Laws of 1892, chap. 690], $$ 9, 50, as amd. by Laws of 1893, chap. 725; now Consol. Laws, chap. 28 [Laws of 1909, chap. 33], §§ 9, 50, as amd. by Laws of 1910, chap. 634, and Laws of 1909, chap. 301.) If the business was conducted in violation of law, that may be a defense to the action; but if so, it should be pleaded and proved as a defense, for it is no part of the plaintiff's case and is not necessarily presented thereby. It does not appear from the complaint that the action is based on a contract prohibited by the laws of this State. The action is not on an insurance contract made here, but on an account stated without its appearing where it was stated under a contract evidenced by a letter of appointment of the defendant, written by the manager of the plaintiff's assignor, dated at

App. Div.]

First Department, November, 1911.

San Francisco, Cal., and addressed to the defendant at the city of New York, and it does not appear how or where the letter of appointment was delivered. The prohibition in section 15 of the General Corporation Law (Gen. Laws, chap. 35 [Laws of 1892, chap. 687], as amd. by Laws of 1904, chap. 490; Consol. Laws, chap. 23; Laws of 1909, chap. 28) against the maintenance of actions in this State by a foreign stock corporation, doing business in this State without procuring a certificate authorizing it to transact business here, is against the maintenance of actions upon contracts made in this State only.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, the motion denied, with ten dollars costs, and the attachment reinstated.


Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and attachment reinstated.

GRACE DOUGHERTY, an Infant, by GRACE DOUGHERTY, Her Guardian ad Litem, Appellant, v. THE CITY OF NEW YORK and WILLIAM BRADLEY, Respondents.


First Department, November 3, 1911.

Negligence-failure of contractor to support sidewalk adjoining excavation — injury to pedestrian by flagstone falling into excavation — proof raising question for jury - when city not chargeable with notice contributory negligence.

Where, in an action against the city of New York and against a contractor constructing a subway to recover for injuries to a pedestrian received when a flagstone which was part of the street and apparently safe slipped into an adjoining excavation made by the contractor as the plaintiff stepped upon it, there is a conflict of evidence as to whether the excavation was properly shored up by the contractor, who had knowledge that the earth beneath the flagstone was composed of rubbish, refuse and barrels, so as to furnish an insufficient support, the question as to the liability of the contractor should be submitted to the jury.

First Department, November, 1911.

[Vol. 146.

But as the sidewalk was apparently safe and the excavation was in connection with subway construction work, the city was not chargeable with constructive notice, and the complaint was properly dismissed as to it.

The plaintiff was not guilty of contributory negligence as a matter of law in stepping upon the flagstone.

APPEAL by the plaintiff, Grace Dougherty, an infant, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of February, 1911, upon the dismissal of the complaint by direction of the court as to the defendant The City of New York at the close of the plaintiff's case on a trial at the New York Trial Term, and as to the defendant Bradley at the close of the whole case.

William H. Griffin [Martin T. Manton with him on the brief], for the appellant.

Loyal Leale [Theodore Connoly with him on the brief], for the respondent The City of New York.

Max Altmayer, for the respondent Bradley.


About eight o'clock in the morning of the 24th day of August, 1907, plaintiff was lawfully passing westerly along the southerly sidewalk of Delancey street, borough of Manhattan, New York, and when in front of No. 117, which is a little more than one block west of the Williamsburg bridge, a flagstone, forming part of the sidewalk, upon which she stepped, sank into an excavation made by the defendant Bradley for the construction of the Williamsburg bridge loop subway, carrying her down with it, and she sustained injuries to recover for which this action was brought. She charges negligence on the part of the defendant Bradley in leaving the sidewalk unsupported after making the excavation, and on the part of the city in failing to discover that the walk was in a dangerous condition, and to restore it to a condition of safety before the accident. The dismissal of the complaint can be sustained only upon the theory that as matter of law the plaintiff was guilty of contributory negligence, or that no negligence was

App. Div.]

First Department, November, 1911.

shown on the part of the defendants which caused or contributed to the accident.

It does not appear whether the defendant Bradley was the original contractor for the excavation for the subway, or a subcontractor, or with whom he contracted; nor were the plans for the work introduced in evidence. It appears to have been assumed, however, that the work was subway construction work and was authorized. It was shown that the defendant Bradley did the excavation work, and that upon him primarily rested the duty of protecting the sides of the excavation, by sheathing or otherwise. Evidence was introduced on the part of the defendant Bradley tending to show that the work was carefully done, and that the side of the excavation, at the point where the accident happened, was properly protected by sheath piling; but that evidence was not uncontroverted. Evidence was offered on the part of the plaintiff tending to show that the southerly side of the carriageway of the street was excavated to about the curb line, or the line of the outer stones of the sidewalk to a depth of twenty to forty feet; that the side of the excavation next to the sidewalk was perpendicular, and that at the point where the flagstone sank down and slid into the excavation it was unprotected by sheathing or otherwise. The street had been widened nearly sixty or seventy feet some years before, and in tearing down the old tenement buildings and stores that occupied the space where the sidewalk now is, the cellars were filled or left filled in with rubbish, refuse and barrels. This was the nature of the support of the sidewalk to the depth of about ten feet, and it was plain to be seen, and was observed by those in charge of the excavation work for the defendant Bradley. The excavation work on the southerly side of the street had been finished from a month to six or seven weeks, and a bridge had been constructed by another contractor over the excavation to accommodate the traffic, while the defendant Bradley was excavating the northerly side of the street where the work was progressing at the time of the accident. The defendant Bradley had no part in the construction of the bridge work, but there is nothing to show that it in any way contributed to the accident. There is also evidence tending to show that the sub

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