Heaton v. Tracy — 21 N.Y. St. Rep. 481

Majority

p. 481

Eva Heaton, Resp’t, v. Leonard F. Tracy, App’lt.

(New York Superior Court, General Term,

Filed January 11, 1889.)

Headnote

Pbactice—Right to closing abgumbnt.

Where the burden of establishing a defense is put on the defendant, and the defendant having given evidence upon which the jury might have found in favor of both grounds of defense, it is error thereafter to deny the defendant the right to make the closing argument to the jury.

Appeal from, judgment for $5,841.88, entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

James II. Elliott, (Austen G. Fox, of counsel) for app’lt; Barlow & Carman, for resp’t. •

The question presented by the appeal is not controlled by the pleadings as they originally stood. The answer, as amended upon the trial, entitled the plaintiff to the direction of a verdict for the amount of the promissory note sued upon, unless the defendant established at least one of the two affirmative defenses pleaded, viz.: duress and no consideration. Upon this issue the trial judge properly held, that the defendant had the affirmative and that he was entitled to open the case.

The burden of establishing a defense having thus been put on the defendant, and the defendant, as must be assumed from the case as settled, having given evidence upon which the jury might have found in favor of both grounds of defense, it was error thereafter to deny to the defendant the right to-make the closing argument to the jury. Murray v N. Y. Life Ins. Co., 85 N. Y., 236 .

p. 482

The jury having found for the plaintiff, the error aforesaid calls for reversal.

The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event.