Lake Ontario Nat. Bank v. Judson

• Citation: 25 N.E. 367,122 N.Y. 278
• Parties: LAKE ONTARIO NAT. BANK v. JUDSON.
• Decision Date: 07 October 1890
• Court: New York Court of Appeals

122 N.Y. 278

25 N.E. 367

LAKE ONTARIO NAT. BANK

v.JUDSON.

Court of Appeals of New York, Second Division.

Oct. 7, 1890.

Appeal from supreme court, general term, fourth department.

The action was brought to recover the amount of four promissory notes, which by the complaint the plaintiff alleged were made by the defendant, payable to the order of E. M. Fort, delivered to the payee, and by him indorsed and transferred to the plaintiff. And the plaintiff also thereby alleged that the defendant was indebted to it, in a sum stated, for money advanced on his checks drawn upon the plaintiff for an amount in excess of his deposits there. The defendant by his answer alleged that he and Fort purchased of the plaintiff some canal-boats; that they were induced to make the purchase by the warranty of the plaintiff, particularly specified, and gave for them their joint notes; that, afterwards, the plaintiff took up those notes, and the makers gave their individual notes for their respective interests in the purchase to the plaintiff, which notes were received by the plaintiff ‘in place of and in payment of said first-mentioned notes, and which notes last given are the notes and the renewal thereof set forth in the complaint.’ The defendant alleged a breach of this warranty and damages as the consequence, which he claimed should be allowed to him. He also alleged by way of counter-claim that the plaintiff was indebted to him in a further sum for services performed by him for and at the request of the plaintiff, for which, with the amount of damages for the alleged breach of warranty, he demanded judgment. And for further answer, he denied the complaint, and each and every allegation therein contained, except as thereinbefore admitted. The plaintiff by reply put in issue the new matter of the answer consituting the alleged counter-claims. The trial court directed judgment for the amount of the notes and of the overdraft mentioned in the complaint.

TRIAL-BURDEN OF PROOF-CLOSING ARGUMENT.

Where the answer admits some allegations of the petition and denies others, the burden of proof is still on the plaintiff as to the latter, and an oral admission of their truth at the trial obviates the necessity of further proof, but will not deprive plaintiff of the right to open and close the case, since the right to the closing argument must be determined by the state of the pleadings when the parties go to trial. Affirming 45 Hun, 595, mem.

H. C. Benedict and Miller, Lewis & Judson, for appellant.

S. C. Huntington, Jr., for respondent.

BRADLEY, J., ( after stating the facts as above.)

The contest on the trial mainly had relation to the defendant's alleged counter-claim for services, upon which claim he gave evidence to the effect that they were performed by him pursuant to an agreement with the plaintiff, by which the latter undertook to pay him $2,500, of which $160 had been paid. This claim, and the evidence on the part of the defendant tending to support it, were disputed by the evidence on the part of the plaintiff, and the trial court found the facts against the defendant. For the purpose of this review, the findings and determination of the court below must be deemed conclusive. Upon the trial, the question as to which party was entitled to the closing argument was raised. The court held that the plaintiff had the right to it, and the defendant excepted.

The rule that the party having the affirmative of the issues in an action shall have the opportunity to make the opening and closing presentation of his case is deemed founded upon a substantial right, the denial of which is error. Conselyea v. Swift, 103 N. Y. 604, 9 N. E. Rep. 489. In its application to trials by jury, it has ordinarily more practical importance than in those before the court without a jury, and before referees. If it appears that a party could not have been prejudiced by the failure of the court to observe the rule, the error would not be available; and in trials by the court without jury, or before referees, that question would be dependent upon the circumstances of each case. In the present case, the view of the court evidently was that the affirmative of the entire issues was not with the defendant; and that is the question presented for consideration. The denial by the defendant in his answer, except as therein admitted, of each and every allegation of the complaint, put in issue any material allegation of the complaint not distinctly admitted by the answer. Allis v. Leonard, 46 N. Y. 688; Calhoun v. Hallen, 25 Hun, 155. The charge in the complaint, in due form, of the indebtedness of the defendant to the plaintiff for the amount advanced to him upon his check, in excess of the balance of his account with the plaintiff, was...