(dissenting). If the jury were mystified about the burden of proof, the plaintiff was the cause of it. It asked the court to charge that “the burden of proving the modification of the original contract is on the defendant; they alleged it; we do not.” The defect of this request was that it assumed, as I think the court does, that the defendant offered to modify the contract sued on. Modification implies admission, with some change; but the defendant did not confess that the services were rendered under the September contract, and avoid that by new matter. It did not offer to modify that contract, but, on the contrary, denied that it applied to the services in question at all. The plaintiff sued upon what at common law were the common counts in general assumpsit; i. e., without specifying the special contract. Use of the common counts is quite consistent with the requirements of section 481, N. Y. Code of Civil Procedure. Moffet v. Sackett, 18 N. Y. 522; Fulton v. Ins. Co., 4 Misc. Rep. 76, 23 N. Y. Supp. 598. It had a right to proceed in general assumpsit, because the special contract had been fully performed by it and nothing remained to he done, except payment by the defendant. The special contract merely regulated the price. Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Dubois v. Canal Co., 4 Wend. (N. Y.) 285.
The answer contained a general denial, and also set up as a separate defense that the plaintiff was entitled to be paid for its services only the sum of $4,048.82, which the defendant tendered before suit brought and the plaintiff refused to receive. This was not a defense at all, and is to be entirely disregarded as such. It was an admission of liability and allegation of tender, affecting only the question of costs and interest (section 733, Code of Civil Procedure), if properly perfected (section 732). Therefore the cause was properly disposed of by the trial court upon the issue made by the defendant’s general deuial, which left the burden on the plaintiff to prove how much, if anything, the defendant owed. There was certainly no duty upon the defendant to prove this. The opinion of the court admits that the September contract did not prevent the parties from making other and different contracts. Therefore it was entirely competent for the defendant to show that those services were not rendered under llie September contract, but under another and different contract.
Suppose that the plaintiff had sued to recover only the services rendered in connection with the December order; would the defendant have been obliged to plead as a defense that the services were rendered under a different contract or be remediless? And, if not pleaded as a defense, could the court have refused to- let the defendant cross-examine the plaintiff's witnesses on this point in the plaintiff’s case ? I think the defendant could show under its general deuial alone by cross-examination of the plaintiff’s witnesses in the plaintiff’s case, as well as by its own witnesses in its own case, that the services *290were rendered under a different contract, without in any way relieving Ihe plaintiff of the burden that lay upon it throughout of proving what amount, if any, it was entitled to recover.