The complaint alleges that between the 1st day of July, 1892, and the 1st day of July, 1893, one James Hannon performed work, labor and services for the above-named defendant at his special instance and request of the value, qnd which he *348promised to' pay therefor, the sum of thirteen hundred and eighty-eight and sixty-one one-húndredths ($1,388.61) dollars; that no part of the same has been paid excepting' the sum of nine hundred, and fifty ($950) dollars, leaving a balance due and ■owing of four hundred and thirty-eight and sixty-one one-hundredths ($438.61) dollars.. ■ ■
Prior to the commencement of this action the' said James Han-non duly assigned, transferred and set over unto this plaintiff all his' right, title and interest in and to said claim against this defendant. .
The answer is a general denial.
On the trial' the assignment of the claim 'to the plaintiff was admitted.
On this appeal a reversal is asked for upon two grounds:
First. That the motion for the dismissal of the complaint at the close of the plaintiff’s case, on the ground that the- plaintiff had not established a cause of action, should have been granted, and the refusal of the court, was error, and
Second. That the request on behalf of thé defendant that the court should charge the jury: “ That if the jury believed that on November 11, 1893, the- plaintiff’s assignor;, James Hannon, '' signed a receipt in full for all dues and demands,, it is a bar to this action,” should have been granted, and its refusal is error.'.
The points presented will be considered in their order..
In attempting the consideration of the first proposition, that the plaintiff at the close of his case failed to make'out a cause of action, we are confronted with, the objection that the record does not contain a statement.that the case contains all the evidence adduced on the trial, but does contain a statement “ that the foregoing is a complete record of all the testimony taken on ■ the trial of the above-entitled action, and is a true record- of all ‘the proceedings thereat.”
This is insufficient, it having been held that such a statement is not equivalent to the statement that the case contains all the evidence, and in the absence of the latter statement the General Term is. precluded from reviewing questions, of fact.
It necessarily follows that unless all the evidence is before the court, so that we may see whether or not the cause of action has been proven, we cannot determine that the ruling upon a motion based upon all the evidence is improper.
The request to charge, “ That if the jury believes that on November 11, 1893, the plaintiff’s assignor signed, a receipt in. *349full for all dues and demands, it is a.bar to this■ action,” was properly refused. . •
Payment was not pleaded, and it is well settled that the defense of payment must be set up by the answer and, being an affirmative defense, must be proved.
Furthermore, the receipt is not conclusive. It may be explained.
In this case it appears that there is a conflict of evidence, and the learned trial judge, by a clear and impartial charge, left it with the jury to find the,fact, and they having found against the defendant, we cannot say that they were not justified in so doing.
Judgment and order appealed from should be affirmed, with costs. ■ ' ...
McCarthy, J., concurs.
Judgment;and order affirmed, with costs.