
    Gustave Lange, Respondent, v. Morris Garfunkel, Appellant.
    (Supreme court, Appellate Term,
    December, 1898.)
    Appeal — An improper denial of the right to open and close a reversible error. ' '■ ;
    Where, upon the pleadings in an action, the affirmative is with the defendant, it is reversible error for the court to refuse his request, made at the opening of the trial, that he be allowed to open and close the case.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, rendered in favor of the plaintiff upon a trial had before the court, without a jury.
    The facts, so far as material, are stated in the opinion.
    Henry L. Franklin, for appellant.
    Straley, Hasbrouck & Schloeder, for respondent.
   Giegerich, J.

The record shows that the defendant did not deny any of the allegations of the complaint, but set up affirmative defenses. Hence, when the case was called for trial, nothing remained for the plaintiff to prove. It is to be conceded that defendant’s admissions upon the trial did not affect the right to the affirmative, but under the state of the pleadings, as disclosed by the return, the affirmative was with the defendant. Under the circumstances, it was reversible error for the trial justice to refuse, as he did, the latter’s request made at the opening of the trial, to open and close the case. Conselyea v. Swift, 103 N. Y. 604; Trenkmann v. Schneider, 23 Misc. Rep. 336, and citations.

The judgment must, therefore, he reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildersleeve, J., concur.

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