Lindsley v. European Petroleum Co. , 41 How. Pr. 56 ( 1871 )

Where an answer admits the making and delivery of a promissory note and sets-up an affirmative defense, the affirmative is with the defendant who is entitled to open and close the case, and the refusal of the court to allow him so to do, is error, for which judgment will be reversed and a new trial ordered.

First District, General Term, January, 1871.

The answer of the defendants was as follows: “The defendants came into court and answering the complaint of plaintiffs, admit the making, indorsement, transfer and delivery of the said notes, and deny the other allegations therein contained,” and then proceeded to set forth an affirmative defense.

The referee decided that the plaintiff was entitled to open and close the case, to which decision defendants’ counsel excepted. The counsel for plaintiffs, thereupon opened the case, produced the promissory notes mentioned in the complaint and rested. The referee having decided in favor of plaintiffs, the defendants appealed to the general term upon the foregoing and other exceptions.

Argued as follows on the point above suggested.

The referee erred in his ruling to the effect, that the plaintiffs were entitled to open and close.

II. It being clear that the affirmative was with the defendants, we submit that the error of the learned referee in denying them their right to open and close, is a subject of review by the appellate court, and that the defendants on this .ground alone, are entitled to a new trial. (Huntington agt. Conkey, approved in 31 N. Y., 614; 33 Barb., 218; citing Davis agt. Mason, 4 Peck, 158; Brooks agt. Barrett, 7 Peck, 98 ; 8 Metcalf, 64; 7 Cush., 563; Rolum agt. Hanson, 11 Cush., 44; Hoxie agt. Green, 37 How., 97.)

ITT. Nor is it for the defendant to show that the error of the referee prejudiced him. It is for the plaintiff to prove •.the negative of that proposition. (Greene agt. White, 37 N. Y., 384.)

Argued that the denial of “ all other allegations ” was sufficient to entitle plaintiffs to the affirmative, and moreover, that it was a question within the discretion of the referee, and his ruling thereon would not be reviewed.

After argument, the court declined to look into the other exceptions in the case, and held that the referee erred in not allowing defendants to open and close «the case, and reversed the judgment accordingly.