
    The Lake Ontario National Bank, Respondent, v. David H. Judson et al., Appellants.
    (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 the report of a referee.
    The principal question in the case was as to which party had the affirmative of the issue, and so the right to close the ease. The referee decided that, under the pleadings, the plaintiff had that right, and Potter, J., concurs with the referee. The majority - of the court, however, hold this to he erroneou's, but that, as plaintiff, on the trial, consented and offered to yield the privilege to the defendants, this cured the error and removed all ground of complaint.
    
      J. B. Higgins for appellants.
    
      S. C. Huntington, Jr., for respondent.
   Potter, J., reads for affirmance.

All concur in the result, except Follett, Oh. J., not sitting.

.Judgment affirmed.  