Liberty Lumber Co. v. Pye

• Decision Date: 15 January 1965
• Citation: 44 Misc.2d 950,255 N.Y.S.2d 782
• Parties: LIBERTY LUMBER CO., Inc., Plaintiff, v. Woodrow PYE and John Price, Jr., co-partners, doing business under firm name and style of Charlwood Construction Co., Defendants.
• Court: New York District Court

Page 782

255 N.Y.S.2d 782

44 Misc.2d 950

LIBERTY LUMBER CO., Inc., Plaintiff,

v.

Woodrow PYE and John Price, Jr., co-partners, doing business under firm name and style of Charlwood Construction Co., Defendants.

District Court, Nassau County, Second District.

Jan. 15, 1965.

Wolff & Hass, Jamaica, for plaintiff.

Philip Rosenstock, Brooklyn, for defendants.

BERNARD TOMSON, Judge.

In this action for goods sold and delivered, the oral answer reads:

'1. General Denial.

'2. That the defendant is not a partnership but a corporation formed under and pursuant to the Laws State of New York.'

In effect, the defendants have pleaded affirmatively what they sought to prove, i. e., that they acted as agents for a disclosed principal, to wit, the corporation, and are not liable either as individuals or as partners. The sole remaining question here, all other matters having been determined in favor of the plaintiff, involves placing the burden of persuasion as to the second defense.

A statement respecting the applicable rule is found in Restatement Agency 2d, Sec. 320(b):

'Burden of proof. One bringing an action upon a contract has the burden of showing that the other is a party to it. This initial burden is satisfied if the plaintiff proves that the defendant has made a promise, the form of which does not indicate that it was given as agent. The defendant then has the burden of going forward if he wishes to show that his promise was made only as an agent and that this should have been so understood.'

Cf. Cobb v. Knapp, 71 N.Y. 348, 351, 352, 3 Am.Jur.2d 346, and see Matsko v. Dally, 1956, 49 Wash.2d 370, 301 P.2d 1074, 1076 where the Court citing the Restatement on Agency and 1 Meecham on Agency, § 1413, held that the burden of proof was on the defendant on a similar affirmative defense.

It is sometimes stated that the burden of pleading and the burden of persuasion of proof are on the same party. This is not necessarily so. See on burden of proof, burden of persuasion and burden of pleading Basic Problems of Evidence by Edmund M. Morgan (September 1962, Joint Committee On Continuing Legal Eduaction of the American Law Institute and the American Bar Association,) pp. 17 et seq., IX Wigmore Third Edition, Section 2458 et seq., Burdens of Proof by James, 47 VA LR 51, Presuming and Pleading, An Essay on Juristic Immaturity by Cleary, 12 Stanford LR 5, Elements of Civil Procedure by Rosenberg and Weinstein, pp. 664 et seq., Evidence by Morgan, Maguire and Weinstein, 427 et seq. 3, and New York Civil Practice by Weinstein, Korn, Miller, Sections 3018-13 et seq.

In the instant case, the second defense would appear to contain matter which if not pleaded would be likely to take the adverse party by surprise. In the form which CPLR 3018(b) is presently cast, such a plea is denominated as falling into the category of 'Affirmative Defenses.'

It does not necessarily follow that the burden of persuasion on that issue ipso facto falls on the defendant. The criteria to be used in determining allocation of the burden would seem to...