
    The Lake Ontario National Bank, Respondent, v. David H. Judson, Appellant.
    
      It seems, the privilege the party, having the affirmative of the issues in an action, has of opening and closing the case on trial, is founded upon a substantial right, the denial of which, unless it be made to appear that he could not have been injured thereby, is error.
    The question as to which party has this right, is to be determined by the pleadings, and the test is whether, without any proof, plaintiff, upon the pleadings, is entitled to recover upon all the causes of action alleged in his complaint. If he is not, no matter how little proof the issue may require, if it is requisite to establish it by evidence, plaintiff has the right to open and close the case. If lio is, and defendant alleges a counter-claim, controverted by plaintiff, or sets up an affirmative matter of defense, which is the subject of trial, the defendant has that right.
    The admission, upon the trial, of a fact in issue, is evidence merely, and while it may obviate the necessity of further trial of the issue, and reduce the controversy to matter as to which the affirmative is with defendant,' it does not change the issue as represented by the pleadings; that can be done by amendment only.
    The defendant who desires to take the right of opening and concluding the trial, must frame his pleading with that view, i. e., so as to present no issue upon any allegation of the complaint essential to the plaintiff’s case.
    This action was brought upon certain promissory notes, also to recover an alleged indebtedness for overdrafts. The answer, after admitting the making of the notes by defendant, and setting up an affirmative defense thereto, and certain counter-claims, denied the complaint, and each and every allegation thereof, except as already admitted. Plaintiff, by reply, put in issue the counter-claims. After the opening of the case by plaintiff's counsel, upon the trial, defendant orally admitted the count of the complaint alleging the overdrafts, and the issue tried was simply as to the counter-claims. Defendant claimed the right to the closing argument; this was denied by the court. Held, no error, as by the answer the making of the overdrafts was denied, and so, the affirmative of the issue, in this respect, was with plaintiff.
    (Argued June 26, 1890;
    decided October 7, 1890.)
    Appeal from judgment of the General Term of the Supreme. Court in the fourth judicial department, entered upon an order made September 20,1887, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.
    This action was brought to recover the amount of four promissory notes, which, hy 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. The complaint also alleged that the defendant was indebted to respondent 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, hy liis 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 afterward the plaintiff took up those1 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 answer then alleged a breach of this warranty and damages as the consequence ; it also alleged, hy way of counter-claim, that the plaintiff was indebted to defendant 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 constituting the alleged counter-claims. The trial court directed judgment for the ( amount of the notes and of the overdraft mentioned in the complaint. \
    Further facts appear in the opinion.
    
      H. C. Benedict for appellant.
    The court erred in refusing to allow the defendant to make the closing argument. (Addison on Cont. §-1268; Barrick v. Austin, 21 Barb. 241; Raynor v. Hoagland, 7 J. & S. 11; 64 N. Y. 630; Tallmam v. Gibson, 1 Hall, 344; Bank of Chenango v. Hyde, 4 Cow. 567; Brown v. Penfield, 36 N. Y. 473; Wood v. Wellington, 30 id. 248; Houghton v. Dodge, 5 Bosw. 326; Smith v. Sergent, 67 Barb. 243, 244; Conselyea v. Swift, 103 N. Y. 604-606; P. S. Co. v. Meyer, 8 Daly, 64; Opper v. Caillon, 9 id. 157; Murray v. N. Y. L. Ins. Co., 85 N. Y. 236; In re Church, 64 How. Pr. 397, 399; DeGraff v.Carmichael, 13 Hun, 129; Huntington v. Conkey, 33 Barb. 218; Katz v. Kuhn, 9 Daly, 166; Brennan v. S. L. Ins. Co., 4 id. 296; Lindsay v. E. P. Co., 10 Abb. [N. S.] 167; 3 Lans. 176; Mead v. Shea, 92 N. Y. 122; Millerd v. Thorn, 56 N. Y. 402, 405; Elwell v. Chamberlain, 31 id. 614; Hoxie v. Green, 37 How. Pr. 97; Best on the Bight to Begin, 87, 92, 94: 2 Estee’s Pleadings and Forms, 400; Lesinson v. Swartz, 22 Cal. 229; People v. R. R. R. R. Co., 12 Mich. 389; Gilland v. Lawrence, 13 Wkly. Dig. 372; Byle v. Harrington, 4 Abb. Pr. 421; U. Bank v. Phillips, 4 Humph. 388; Billings v. Jane, 11 Barb. 620; 2 Parsons on Bills and Flotes, 9; Peasley v. Robins, 3 Metc. 164; Smith v. Nevlin, 89 Ill. 193; Patterson v. Carroll, 60 Ind. 128; Boody v. Bartlett, 42 N. H. 558; Rhyan v. Dunningan, 76 Ind. 178; Taylor v. Rees, 44 Miss. 89; Jones v. Witter, 13 Mass. 304; Balmer v. Sunder, 11 Mo. App. 454; Grover v. Grover, 24 Pick. 261; Hale v. Rice, 124 Mass. 292; Hedger v. Sealy, 9 Barb. 214; Van Riper v. Baldwin, 19 Hun, 344.) The findings and order for judgment is so strongly and clearly against the evidence that the judgment should be reversed. (Code Civ. Pro. § 1346; Godfrey v. Misier, 66 N. Y. 250; Sherwood v. Hernser, 94 id. 427, 626; Baird v. Mayor, etc., 96 id. 557.)
    S. C. Huntington, Jr., for respondent.
    This court, on appeal from a judgment of affirmance, cannot examine the •case to see if the findings of fact are, or some of them are, •against the weight of evidence. (Thomson v. Bank, 82 N. Y. 1; Bealy v. Clark, 30 N. Y. S. R. 897; Burgess v. Simonson, 45 N. Y. 225; Cook v. Whipple, 55 id. 150.) The refusal to nonsuit was proper. (Bank of Havana v. Magee, 20 N. Y. 355; Code Civ. Pro. §§ 1776, 1777.) The court has a right to exclude irrelevant evidence. (King v. N. Y. C. & H. R. R. R. Co., 72 N. Y. 607.) The court committed no error in holding that plaintiff had a legal right to the closing argument. (Kobbe v. Price, 14 Hun, 55; Pontifex v. Jolly, 9 C. & P. 202; Claflin v. Baere, 28 Hun, 204; Clark v. Dillon, 97 N. Y. 373; Abb. Tr. Brief, 35; T. & R. R. R. Co. v. Kerr, 17 Barb. 598; Swift v. Kingsley, 24 id. 541, 544; Vanderbilt v. Schreyer, 21 Hun, 541, 544; Goodyear v. De La Vergne, 10 id. 537; Gildersleeve v. Landon, 73 N. Y. 609; Albro v. Figuera, 60 id. 630; Allis v. Leonard, 46 id. 688; Gilland v. Lawrence, 13 Wkly. Dig. 372; Benedict v. Penfield, 42 Hun, 176; Hoxie v. Green, 37 How. Pr. 97; Bradley v. Clark, 1 Cush, 293; Fry v. Bennett, 28 N. Y. 324; Wooley v. Newcomb, 87 id. 605; Hunter v. A. P. L. Ins. Co., 4 Hun, 794; 71 N. Y. 604; Elwell v. Chamberlain, 31 id. 611; Conselyea v. Swift, 103 id. 604; Bailey on Onus Probandi, 607; Leet v. G. L. Ins. Socy., 7 Eng. L. & Eq. 578; Silvan v. Peardon, 5 Ark. 140; Bertrand v. Taylor, 32 id. 476; Johnson v. Joseph, 75 Me. 545; Dille v. Lowell, 37 Ohio St. 415; Young v. Highland, 9 Gratt. 16; 1 Taylor on Ev. §§ 338, 339, 341; Buzzell v. 
      Sewell, 25 N. H. 414; Simmons v. Green, 35 Ohio St. 104; Howard v. Haynes, 15 J. & S. 98; Thurston v. Bennett, 22, N. H. 15; Churchill v. Lee, 77 N. C. 341.)
   Bradley, J.

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 hy 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 tlie party having the-affirmative of the issue 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.) 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 this 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 issue 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; 22 Alb. L. J. 28; 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 checkin excess of the balance of Ins account with the plaintiff, was not admitted by the answer, but was controverted by such denial. It appears that after the trial had been moved and the plaintiff, by its counsel had, by statement of it, made the-opening of the case to the court, the defendant orally admitted the count of the complaint alleging the overdraft. The plaintiff then proceeded -to prove the signature of the defendant to. the notes and the indorsement by the payee, and rested. It seems that the plaintiff deemed it necessary to make this proof, perhaps for the reason that the allegation in the answer of the making and delivery of the notes by the defendant to the-•plaintiff, was treated as not sufficient upon which to rest,, coupled as it was with the further allegation of their consideration, as the foundation of the counter-claim, alleged to have-arisen out of a warranty and its breach. The apprehension may have been that the adoption of the admission in the-answer of the maldng and delivery of the notes, could not be-severed from what was alleged as the consideration out of which they arose, within the principle that when an admission, of a fact is made in connection with that • of another, which nullifies the effect of it, the entire statement must be taken together. (Gildersleeve v. Landon, 73 N. Y. 609.) Assuming, as we do, that such rule of construction was not applicable to-this admission in the answer, and that no proof of the execution or indorsement of the notes was necessary, the question arises whether the oral admission at the trial of the plaintiff’s claim for the amount of the defendant’s overdraft, entitled him to the right of closing the argument on the final submission of the case to the court for determination. And that depends upon the question whether the affirmative of the issue, with a view to such a right, must be ascertained from the pleadings, or may arise from admissions orally made at the trial. The issues to be tried can be ascertained only by reference to the pleadings, and they must govern so far as relates to the right of the parties to open the case at the beginning and conclude the argument at the close of the trial. When, the parties go to trial they respectively assume the burden of establishing that which they have affirmativély alleged as a cause of action or counter-claim, if it is controverted by •allegation sufficient to put it in issue. The admission of a fact upon the trial is evidence merely. It may obviate the necessity of further trial of the issue to which it relates, but does, not change it as represented by the pleadings. That can be done by amendment only. It is true that the admission made at the trial may reduce the controversy to matter as to which the affirmative is with the defendant. Such would be the effect of evidence of any character, undisputed and indisputable of the facts constituting the alleged cause of action. The right under consideration does not depend simply upon 'the admission of those facts, unless they are admitted or uncontroverted by the answer; otherwise it is evidence only. There is no occasion to extend the rule so as to give effect for such purpose, to concessions at the trial. This might lead to the adoption of such a course when further dispute of the facts upon which a plaintiff relies may appear hopeless to a defend•ant, for the purpose of obtaining the right of closing the trial. There is no apparent reason for applying such rule to any one more than to any other stage of the trial. The defendant who may wish to take the right of opening and concluding the trial, must frame his pleading with that view, and so as to present no issue upon any allegation of the complaint essential to the plaintiff’s alleged cause of action. If the defendant fail to ■do that, no matter how little proof the remaining issue may require, or how easily, or in what manner it may be established by evidence, the right of the plaintiff to open and close the case is not denied to him. (Mercer v. Whall, 5 Ad. & EL. [N. S.] 447.) The test is, whether without any proof, the plaintiff, upon the pleadings, is entitled to recover upon all the causes of action alleged in his complaint. If he is, and the defendant alleges any counter-claim, controverted by the plaintiff’s pleading or any affirmative matter of defense in avoidance of the plaintiff’s alleged cause of action, and which is the subject ■of trial, the defendant has the right to open and close, otherwise not, (Huntington v. Conkey, 33 Barb. 218; Elwell v. Chamberlin, 31 N. T. 614; Murray v. N. Y. L. Ins. Co., 85 id. 236.) The production of the note sued on and the computation of interest proved, are not embraced in the facts essential to the cause of action. If the defendant, by permission of the court, had stricken out the denial in his answer, or amended it by inserting the admission orally made, a different question would have been presented at the trial upon the claim of the defendant to the right to conclude it.

No other question requires the expression of consideration* The judgment should be affirmed.

All concur except Follett, Oh. J., not sitting.

Judgment affirmed.  