
    Leland and another vs. Bennett.
    If part of an entire lot sold by the comptroller for taxes be actually occupied at the time of the conveyance, and uo notice be given to the occupant pursuant to 1 R. 8. 412, § 83, the conveyance will be inoperative as to the whole.
    
    It is in the discretion of the judge at the trial whether he will permit a plaintiff to depart from the case first established by him, but which has been defeated by the defendant’s evidence, and prove a new and distinct one.
    Accordingly, the plaintiff in ejectment having made out a prima facie title under a deed from the comptroller, and rested his cause, the defendant proved the deed to be void; whereupon the plaintiff offered to show title derived by him under a mortgage executed by the defendant, but the circuit judge refused to hear the evidence: Held, that the refusal was matter resting in discretion, for which a new trial ought not to he granted.
    The party entitled to begin at the circuit should in strictness introduce all the evidence in support of his side of the issue hefore resting; for he cannot after-wards introduce further evidence as matter of right, save in reply. Per . Cowen, J.
    Ejectment, tried at the Steuben circuit, in June, 1841, before Monell, G. Judge. The action was brought to recover a lot of l'and containing 169 acres, which the plaintiffs claimed under a deed from the comptroller of the state, dated May 13th, 1832, executed on a sale for taxes made in 1830. After giving the deed in evidence, and proving the defendant to have been in possession at the commencement of the suit, the plaintiffs rested. The defendant’s counsel insisted that the plaintiffs acquired no title by the comptroller’s deed, inasmuch as the defendant was in the actual occupation of the land when the conveyance was executed, and had not been notified pursuant to 1 R. S. 400, § 84, 2d ed. To establish this de fence, it was proved that, at the time of the conveyance, though the defendant resided some distance from the lot, he held a paper title to the whole, and actually cultivated nearly an acre on the north west corner. It also' appeared that the defendant had chopped over and used for pasture about three abres, that he had sold some timber off the lot, and his agent had made sugar from the trees growing thereon. On showing these facts the defendant rested; whereupon the plaintiffs’ counsel proposed to establish a right of recovery, by showing a title in the plaintiffs acquired in virtue of a statute foreclosure of a ■mortgage on the premises, executed by the defendant. The defendant’s counsel objected, and the judge excluded the evidence. The judge charged the jury that, if any part of the lot was occupied by the defendant or any other person at the date of the comptroller’s deed, the defendant was entitled to a verdict, inasmuch as the plaintiffs had failed to show that the no tice required by the statute had been given to such occupant. The jury rendered a verdict for the defendant, and the plaintiffs now moved for a new trial on a case.
    
      
      Z. A. Leland, for the plaintiffs.
    
      S. H. Hammond, for the defendant.
   By the Court, Cowen, J.

The cases relied on by the counsel for the defendant are decisive against the plaintiffs’ claim to recover by virtue of the comptroller’s deed. (Comstock v. Beardsley, 15 Wend. 348; Bush v. Davison, 16 id. 550.) The privilege of a part claimant to redeem a part, if he choose, supposed to have been overlooked in those cases, does not vary the principle upon which they proceeded.

After the plaintiffs and defendant had respectively gone through with their evidence on the title derived from the state, the former proposed to begin a new case and deraign a title under the mortgage and foreclosure. This the judge might, in his discretion, have allowed; but, for reasons satisfactory to himself, he refused it.

The plaintiff has a right to reply, by evidence to contradict, cut down, modify, explain or in any way vary the evidence of the defendant; but beyond this he cannot go without the permission of the judge; not even to supply a defect in his own evidence. (Rex v. Hilditch, 5 Carr. & Payne, 299; Briggs v. Aynsworth, 2 Mood. & Rob. 168,169, note (a).) In this case a very wide departure from that rule was claimed, and is now insisted on as matter of right. The plaintiffs were bound to introduce all their evidence in the first instance. (Hastings v. Palmer, 20 Wend. 225; Ford v. Niles, 1 Hill, 300.) Such a course might have been at once decisive of the case. We are not able to see the reasons which influenced the judge; though we can easily conceive that the plaintiffs’ experimenting upon one branch of their title, had, in his opinion, unnecessarily protracted the controversy. If parties be allowed as matter of right to try one cause of action or one defence, and, failing in this, to go into another, there will sometimes be as many distinct trials in each cause as there are grounds for recovery or defence. There are often several issues raised by counts and pleas, or otherwise involved in a single cause, and if the parties have a right fully to introduce their evidence on each of them separately, accordingly as they may have failed or may fancy they have failed as to some one or more, it would often result in examining to facts, and raising and settling questions which might not appear to be at all material on the whole case. Distinct items of claim in actions upon contracts or for wrongs, as well as distinct lines of evidence in support of each, are very common on the side of the plaintiff. Each are perhaps to be answered in one or more of several ways. To allow the usual round of evidence upon each would not only lead to perplexity and disorder in the whole case, but to a consumption of time altogether incompatible with the due progress of general business. Cumulative testimony is often necessary, owing to some slip or forgetfulness of counsel; and I believe the judge seldom refuses to hear it. His error most generally perhaps lies on the side of extreme liberality. But if the public business is to be done and done with proper despatch, he must have a discretion to say whether he will or will not allow it to come in.

It will be seen by the various decisions applying the rule of practice which governs at nisi prius in admitting or excluding supplemental evidence, that it generally calls for a much greater degree of strictness than was exercised by the judge in the present case. A simple declaration of the plaintiffs’ counsel that his proof is closed, or, in the usual phrase, that he rests his case, cuts him off from all farther evidence except what shall be strictly proper by way of reply. (See the cases collected in Cowen & Hill’s Notes to 1 Phill. Ev. 712 to 718.) After the cause has proceeded to the point of rest on the side of the defendant, the introduction of a distinct substantive ground of claim in reply is not admissible within any of the cases; and though it might be received, in the discretion of the judge, even without any special reason, such a step should be avoided out of a regard to its ill effect as a precedeni

New trial denied. 
      
      
         See Shepard v. Potter, (4 Hill, 202,) and Wright v. Henry, (id. 205, in note (a).)
      
     