¶1The cause of action was founded upon a breach of the defendant’s contract to pay upon demand, and without an averment of demand and nonpayment the complaint would have been clearly insufficient in substance. Under these circumstances nonpayment was a constituent of the right of recovery and the plaintiff had the burden of proof (Cochran v. Reich, 91 Hun, 440; Lent v. New York & Mass. R. Co., 130 N. Y. 504; Trenkmann v. Schneider, 23 Misc. Rep. 336), the affirmative allegation of payment in such a case serving only as notice that the issue of nonpayment was actually to be raised. Lent v. New York & Mass. R. Co., supra.
¶2In view of the close question involved in this issue, depending upon the identity of the person to whom payment was made, the court’s instruction that the defendant had the burden of proof, over exception duly taken, was error which requires a reversal of the judgment.
¶3Gildersleeve and Guy, JJ., concur.
¶4Judgment reversed and new trial ordered, with costs to appellant to abide event.