
    George Harley, Resp’t, v. Edward Fitzgerald, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1895.)
    
    1. Trial—Affirmative.
    Failure to grant the right to open and close, in a proper case, is a fatal error.
    
      2 Same.
    The defendant is entitled to this right, where the answer contains no denial, hut sets up a counterclaim.
    Appeal from a judgment of the county court affirming a justice’s judgment in favor of plaintiff.
    
      A. H. F. Seeger, for app’lt; Wm. D. Dickey, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the county court affirming a judgment recovered in the court of a justice of the peace. There is but one point urged on this appeal,—that on the trial before the justice and jury the defendant was denied the right to open and close the case. That this right is substantial,, and that a failure to grant it in a proper case is fatal error, are set-tied by authority. Murray v. N. Y. Life Insurance Co., 85 N. Y. 236; Millerd v. Thorn, 56 Id. 402. By § 2868 of the Code, the justice must hear, try, and determine actions before him according to law. So the principles cited must apply in such cause. 3 Wait, Law & Prac. 470, 724. The plaintiff made oral complaint for $45, with interest from September 1, 1893, for wages. The defendant filed a written answer, pleading a general denial and a counterclaim. When the case came on for trial he filed an amended answer, denying nothing, but admitting the indebtedness of $45, without any allegation as to the interest. The answer then set forth two counterclaims. On this answer, it is plain that the defendant had the affirmative. True, the answer did not admit interest;, but an admission was not necessary, as' the failure to deny the allegation of the complaint operated as an admission. Nor was it necessary for the plaintiff to prove his case. Section 2891 of the Code provides that if the defendant fails to appear and answer the plaintiff cannot recover without proving his case. But this does not apply where the defendant does appear and answer. Gregory v Trainor, 4 E. D. Smith, 58. Nor is it material whether the second defense pleaded be considered a counterclaim or a set-off. In either case, the burden of proof to establish it was on the defendant. The judgment of the county court and -of the justice should be reversed, with costs.

All concur..  