Crawford v. Tyng — 27 N.Y.S. 424

Majority

p. 424

(7 Misc. Rep. 239.)

CRAWFORD v. TYNG.

(City Court of New York, General Term.

February 8, 1894.)

Headnote

Trial—Right to Affirmative.

Where defendant does not claim the affirmative on the trial he will mot be allowed such right' on summing up.

Appeal from trial term.

Action by Erastus Crawford against Thomas M. Tyng to recover money alleged to have been loaned. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

For former report, see 21 N. Y. Supp. 1041 . •

Argued before EHRLICH, C. J., and YAN WYCK and FITZSIMONS, JJ.

T. M. Tyng, in pro. per.

Jacob Fromme, for respondent.

The plaintiff had the affirmative, as the record shows; thus had a right to open and close the case. The defendant did not claim the affirmative, and the record does not show that it was denied him; therefore it was proper for the trial justice to deny his application for the affirmative in summing up. The paper marked “Plaintiff’s Exhibit Number 3,” and set out on page 82 of the printed case, was certainly properly admitted in ■evidence, because the witness Scott testified that it was a copy of a paper given him (Scott) by the defendant, Tyng, personally, which paper the witness said Tyng claimed fixed his compensation and claim to the fund.in the “Schreyer matter.” The testimony submitted fully justifies the verdict gendered, and we find no error in the charge of the trial justice. The verdict is therefore affirmed, •with costs. All concur.