Opinion
November 14, 1917.
C.R. O'Connor, for the appellant.
Andrew J. McNaught, Jr., for the respondent.
The action having been brought to recover a balance claimed to be due the plaintiff on the theory of an overpayment the burden is upon it to prove both sides of the account. ( Irving v. Irving, 90 Hun, 422; Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362.) It must show the amounts necessarily and properly paid by the defendant and the sums deducted by the defendant on account of such payment.
The trial of the issues will, therefore, necessarily involve the examination of all the items set forth in the bill of particulars. The order appealed from should be affirmed, with ten dollars costs and disbursements.
Order unanimously affirmed, with ten dollars costs and disbursements.