The administrator isi a brother of the intesT tate and makes a claim against her estate which is resisted by certain of the next of kin. It was established by competent evidence and found by the referee that on or about November 1, 1884, the intestate entered into- possession of three rooms in her brother’s house, in One Hundred and Sixth street, and used and occupied them1 until her death in February, 1900. The reasonable rental value of' these rooms was seven dollars andi fifty cents per month, and she commenced her occupancy of them under a contract then made by her with her brother by which she agreed to pay him seven dollars -and fifty cents per month for the rent of the rooms as long as she should occupy them, and in the event of his surviving her, her estate was to pay the difference between what she might have paid him in her lifetime and seven dollars and fifty cents a month during the time she so occupied his said premises; and in the event of her surviving him, then his heirs were to have no claim against her for back rent. Receipts signed by the brother andi in the possession of the intestate at the time of her death showed that the first payment made by her on the rent for the month of November, 1884, was four dollars, and that she paid and her brother received *261four dollars on the rent for December, 1884, on the understanding that the balance would be payable, pursuant to their agreement, out of her estate at her death. In the account of the administrator his claim was stated as being for rent of rooms, 184 months at seven dollars and fifty cents a month, amounting to $1,380, with a credit of $445, leaving $935, and this statement was one of the allegations covered by his general verification. The objections filed by the next of kin specified as grounds of objection that the claim had been paid and that it was barred by the Statute- of Limitations. On the trial before the referee the administrator offered himself as a witness in his own behalf, and when his counsel attempted to examine him as to payments made by the intestate to him, objection was made that he was an incompetent witness as to such matters, because of the provisions of section 829, Code Civil Procedure, and this objection was properly sustained, and the evidence was excluded. The administrator, by his counsel, then put upon the record a waiver of any claim in excess of $935, and subsequently filed a formal proof of claim in which payments sufficient to reduce his claim to that amount were admitted, which was verified by him to the effect that no further payments had been made. No further affirmative proof of non-payment was offered by the claimant, and the contestants did not offer any evidence of payment in support of their objection. On this evidence the learned referee reported against the claim, feeling constrained so to do because of decisions recited in his opinion. These cases were all actions in the Supreme Court, and, like Lent v. N. Y. & M. R. Co., 130 N. Y. 504, which was the leading authority relied on, most of them concerned questions of pleading arising on demurrers. A case so nearly like the one at bar as to be controlling is Lerche v. Brasher, 104 N. Y. 157, and lead's to an entirely different result. That was an action against an administrator with the will annexed to recover *262for services rendered his testator; the services and their valne were proved, and the administrator was improperly allowed to testify as to non-payment. A judgment was rendered, which was set aside by an order of the tidal court, affirmed by the General Term, because of the error in receiving this evidence, and the appeal was from this order. The order was reversed, the court, EiNch, J., writing, saying: “ But while the objection was a good one, the evidence was wholly immaterial. The plaintiff was not required to prove the negative, and payment was an affirmative defense, the burden of establishing which was on the defendant.” No' authority was cited to support this proposition, but this was not because authorities did not exist in great abundance. Where a contract obligation of a defendant or of his legal representative to pay a sum of money is shown, it has long been the rule that facts of discharge by payment or release are the subjects of affirmative defenses and affirmative proof on the part of the defendant. McKyring v. Bull, 16 N. Y. 297. There are, of course, cases where non-payment is a fact forming an essential part of a cause of action, and in such cases the negative fact must affirmatively be shown. Such a case was Knapp v. Roche, 94 N. Y. 329, cited by the contestant, where the action was against an officer of a bank for damages for negligently loaning the moneys of the bank to' a third person, who failed to pay, and the bank was thus damaged. Another was Ball & Wood v. Clark & Sons Co., 31 App. Div. 356, where a mechanic’s lienor sought to establish his lien against the owner, without proof that anything was due from the owner to the original contractor. See, also, Quin v. Lloyd, 41 N. Y. 349. But in a case where an executor was sued for the value of board and lodging furnished to' his testator it was determined by the Appellate Division of this department that the plaintiff was not required to prove non-payment as a condition for his recovery, and the cases cited by the *263contestant were by name cited in support of the ruling. Hicks-Alixanian v. Walton, 14 App. Div. 199. See, also, Matter of Rowell, 45 id. 323; In re Macomber’s Estate, 11 N. Y. Supp. 198, aff'd sub. nom.; Matter of Powers, 124 N. Y. 361. The fact that, by the terms of the contract, the intestate was required to pay either at or before her decease does not change the rule. The obligation was to pay a fixed rent, and in every case of this kind only the balance unpaid can be recovered. The defense of the Statute of Limitations cannot .prevail because the balance unpaid did not become due until the death of the intestate. The conclusions of the referee disallowing the claim of the administrator will be reversed and the claim allowed. In all other respects the report is confirmed. Costs of the administrator will be paid out of the estate.
Decreed accordingly.