
    Heaton v. Tracy.
    
      (Superior Court of New York City, General Term.
    
    January 11, 1889.)
    Trial—Arguments of Counsel—Right to Close—Burden of Proof.
    Where defendant in an action on a promissory note pleads duress and want of consideration, the burden is on him ,to establish, such defenses; and, having given evidence in support of both, he has the right to make the closing argument.
    Appeal from jury term.
    Action by Eva Heaton against Leonard F. Tracy. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.
    
      James H. Elliott and Austen 6?. Fox, for appellant. Barlow <& Carman, for respondent.
   Freedman, J.

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 ease 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. Insurance Co., 85 N. Y. 236. 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.  