What is the test for an affirmative defense in a contract for the payment of money only?
"New York", United States of America
The following excerpt is from Murphy's Will, In re, 159 N.Y.S.2d 878, 5 Misc.2d 107 (N.Y. Surr. Ct. 1957):
In Conkling v. Weatherwax, 181 N.Y. 258, 73 N.E. 1028, it was held that in an action upon a contract for the payment of money only, where the complaint does not allege a balance due over and above all payments made, the plaintiff must allege non-payment in this complaint, but the burden of proving payment is upon the defendant. It is an affirmative defense.
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