
    Adolph Salomon, Respondent, v. Josiaii M. Fiske, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1912.)
    Trial — right to open and close the case — negotiable instruments.
    Where the answer in an action on promissory notes merely alleges that plaintiff accepted certain shares of stock in payment of the notes, which plaintiff claimed were received conditionally, subject to investigation, and the only witnesses to the transaction were the parties to the suit, defendant has the right to open and close the case.
    Appeal from a judgment of the Oity Court of the city of New York entered in favor of the plaintiff upon the verdict of a jury.
    Moos, Prince & Nathan (Alfred B. Nathan, of counsel), for appellant.
    William S. Evans, for respondent.
   Page, J.

The action was brought to recover on three promissory notes. The answer does not deny any allegation of the complaint, hut alleges an affirmative defense that the plaintiff accepted two hundred shares of stock in a certain corporation in payment. The only witnesses to the transactions were the plaintiff and the defendant. There was no dispute that the matter was discussed between the parties and that the stock was transferred to the name of the plaintiff at his suggestion and was retained by him for about four months, when he proposed to allow five dollars a share and requested a note from defendant for the balance. Defendant contended- that the plaintiff agreed to accept the stock in payment of the notes, while plaintiff claimed that he received them conditionally, subject to investigation.

The defendant claimed the right to open and close the ease, which was clearly his right, as on the pleadings the plaintiff would havo been entitled to judgment without offering evidence. Payment being an affirmative defense, the burden rested upon the defendant. The denial of his demand to open and close the case constitutes reversible error, unless we can say that it was clearly not prejudicial. Conselyea v. Smith, 103 N. Y. 604; Lake Ontario N. Bank v. Judson, 122 id. 284; Heilbronn v. Herzog, 165 id. 98, 101.

The issue was sharply drawn; both parties were interested ; and the circumstances and documentary evidence must be relied upon for corroboration. Under such circumstances the attorney who makes the answering argument to the jury has a decided advantage, and this was a right of the defendant of which he cannot be deprived.

Lehmaet, J., concurs; Hotchkiss, J., taking no part.

Judgment reversed and new trial ordered, with costs to . appellant to abide event.  