Lange v. Garfunkel — 54 N.Y.S. 993

Majority

p. 993

LANGE v. GARFUNKEL.

(Supreme Court, Appellate Term.

December 13, 1898.)

Headnote

Trial—Right to Open and Close.

Where an answer does not deny any of the allegations of the complaint, but sets up affirmative defenses, defendant has the right to open and close the case.

Appeal from municipal court, borough of Manhattan, Third district.

Action by Gustave Lange against Morris Garfunkel. From a judgment rendered on a decision for plaintiff, defendant appeals.

Reversed.

Argued before BEEKMA2Í, P. J., and GILDERSLEEVE and GIEGERICH, JJ.

Henry L. Franklin, for appellant.

Straley, Hasbrouck & Schloeder, for respondent.

The record shows that the defendant did not deny any of the allegations of the complaint, but set up affirmative defenses. Hence, .when the case was called for trial, nothing remained for the plaintiff to prove. It is to be conceded that defendant’s admissions upon the trial did not affect the right to the affirmative, but, under the state of the pleadings as disclosed by the return, the affirmative was with the defendant. Under the circumstances it was reversible error for the trial justice to refuse, as he did, the latter’s request, made at the opening of the trial, to open and close the case. Conselyea v. Swift, 103 N. Y. 604 , 9 N. E. 489 ; Trenkmann v. Schneider, 23 Misc. Rep. 336 , 51 N. Y. Supp. 232 , and citations.

The judgment must, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

Cases cited

Conselyea v. Swift 103 N. Y. 604 N.Y. 1886-12-07 p. 993
Trenkmann v. Schneider 23 Misc. Rep. 336 N.Y. App. Term 1898-04-27 p. 993