
    The Lake Ontario National Bank, Resp’t, v. David H. Judson, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    Tbial—Right to close—Admission oe fact upon the tbial does not CHANGE THE BULE.
    The issues to be tried can be ascertained only by reference to the pleadings; and they must govern so far as relates to the right of the parties to open the case at the beginning and conclude the argument at the close of the trial. The oral admission of a fact upon the trial is evidence merely, and does not change the rule as to the right to open and close.
    Appeal from judgment of the general term of the supreme court, in the fourth judicial department, affirming judgment entered on decision of the court in favor of the plaintiff.
    The action was brought to recover the amount of four promissory notes, which, by the complaint, the plaintiff alleged were made by the defendant payable to the order of E. M. Fort, delivered to the payee and by him endorsed and transferred to the plaintiff. And the plaintiff also thereby alleged that the defendant was indebted to it in the sum stated, for money advanced on his checks drawn upon the plaintiff for an amount in excess of his deposits there. The defendant, by his answer, alleged that he and Fort purchased of the plaintiff some canal boats; that they were induced to make the purchase by the warranty of the plaintiff, particularly specified, and gave for themjheir joint notes; that afterwards the plaintiff took up those notes and the makers gave their individual notes for their respective interests in the purchase to the plaintiff, which notes were received by the plaintiff “in place of, and in payment of, said first-mentioned notes, and which notes last given are the notes and the renewal thereof set forth in the complaint.”
    The defendant alleged a breach of this warranty and damages as the consequence which he claimed should be allowed to him. He also alleged by way of counterclaim that the plaintiff was indebted to- him in a further sum for services performed by him for and at the request of the plaintiff, for which, with the amount of damages for the alleged breach of warranty, he demanded judgment. And for further answer he denied the complaint and each and every allegation therein contained except as thereinbefore admitted. The plaintiff, by reply, put in issue the new matter of the answer, constituting the alleged counterclaims. The trial court directed judgment for the amount of the notes and of the overdraft mentioned in the complaint.
    
      H. C. Benedict and Miller, Lewis & Judson, for app’lt; 8. C. Huntington, Jr., for resp’t.
   Bradley, J.

The contest on the trial mainly had relation to the defendant’s alleged counterclaim for services, upon which claim he gave evidence to the effect that they were performed by him pursuant to an agreement with the plaintiff, by which the latter undertook to pay him $2,500, of which $160 had been paid. This claim and the evidence on the part of the defendant tending to support it, were disputed by the evidence on the part of the plaintiff. And the trial court found the facts against the defendant. For the purpose of this review the findings and determination of the court below must be deemed conclusive. Upon the trial the question as to which party was entitled to the closing argument was raised; the court held that the plaintiff had the right to it, and the defendant excepted. The rule that the party having the affirmative of the issues in an action shall have the opportunity to make the opening and closing presentation of his case is deemed founded upon a substantial right, the denial of which is error. Conselyea v. Swift, 103 N. Y., 604; 4 N. Y. State Rep., 27S. In its application to trials by jury it has ordinarily more practical importance than in those before the court without a jury and before referees. If it appears that a party could not have been prejudiced by the failure of the court to observe the rule, the error would not be available ; and in trials by the court without jury or before referees, that question would be dependent upon the circumstances of each case. In the present case the view of the court evidently was that the affirmative of the entire issues was not with the defendant; and that is the question presented for consideration. The denial by the defendant in his answer, except as therein admitted, of each and every allegation of the complaint, put in issue any material allegation of the complaint not distinctly admitted by the answer. Allis v. Leonard, 46 N. Y., 688; 22 Alb. L. J., 28; Calhoun v. Hallen, 25 Hun, 155. The charge in the complaint, in due form, of the indebtedness of the defendant to the plaintiff for the amount advanced to him upon his check in excess of the balance of his account with the plaintiff, was not admitted by the answer, but was controverted by such denial.

It appears that after the trial had been moved and the plaintiff by his counsel had by statement of it made the opening of the case to the court, the defendant orally admitted the count of the complaint alleging the overdraft. The plaintiff then proceeded to prove the signature of the defendant to the notes and the endorsement by the payee, and rested. It seems that the plaintiff deemed it necessary to make this proof, perhaps for the reason that the allegation in the answer of the making and delivery of the notes by tíre defendant to plaintiff was treated as not sufficient upon which to rest, coupled as it was with the further allegation of heir consideration, as the foundation of the counterclaim, alleged to have arisen out of a warranty and its breach. The apprehension may have been that the adoption of the admission in the answer of the making and delivery of the notes could not be .severed from what was alleged as the consideration out of which they arose, within the principle that when an admission of a fact is made in connection with that of another, which nullifies the effect of it, the entire statement must be taken together. Gildersleeve v. Landon, 73 N. Y., 609. Assuming as we do that such rule of construction was not applicable to this admission in the answer, and that no proof of the execution or endorsement of the note was necessary, the question arises whether the oral admission at the trial of the plaintiff’s claim for the amount of the defendant’s overdraft entitled him to the right of closing the argument on the final submission of the case to the court for determination. And that depends upon the question whether the affirmative of the issue with a view to such right must be ascertained from the pleadings or may arise from admissions orally made at the trial. The issues to be tried can be ascertained only by reference to the pleadings; and they must govern so far as relates to the right of the parties to open the case at the beginning and conclude the argument at the close of the trial. When the parties go to trial they respectively assume the burden of establishing that which they have affirmatively alleged as the cause of action or counterclaim, if it is controverted by allegation sufficient to put it in issue. The admission of a fact' upon the trial is evidence merely. It may obviate the necessity of further trial of the issue to which it relates, but does not change it as represented by the pleadings. That can be done by amendment only.

It is true the admission made at the trial may reduce the controversy to matter as to which the affirmative is with the defendant. Such would be the effect of evidence of any character undisputed and indisputable of the facts constituting the alleged •cause of action. The right under consideration does not depend simply upon the admission of those facts unless they are admitted or uncontroverted by the answer, otherwise it is evidence only. There is no occasion to extend the rule so as to give effect for such purpose to concessions at the trial. This might lead to the adoption of such a course when further dispute of the facts upon which a plaintiff relies may appear hopeless to a defendant, for the purpose of obtaining the right of closing the trial. There is no apparent reason for applying such rule to any one more than to any other stage of the trial. The defendant who may wish to take the right of opening and concluding the trial must frame his pleading with that view, and so as to present no issue upon any allegation of the complaint essential to the plaintiff’s alleged cause of action. If the defendant fail to do that, no matter how little proof the remaining issue may require, or how easily, or in what manner it may be established by evidence, the right of the plaintiff to open and close the case is not denied to him. Mercer v. Whall, 5 Adol. & Ellis, N. S., 447. The test is whether without any proof the plaintiff upon the pleadings is entitled to recover upon all the causes of action alleged in his complaint. If he is, and the defendant alleges any counterclaim, controverted by the plaintiffs-pleading, or any affirmative matter of defense in avoidance of the-plaintiffs alleged cause of action, and which is the subject of trial, the defendant has the right to open and close, otherwise not.. Huntington v. Conkey, 33 Barb., 218; Elwell v. Chamberlin, 31 N. Y., 614; Murray v. N. Y. Life Ins. Co., 85 id., 236. The production of the note sued on, and the computation of interest-proved, are not embraced in the facts essential to the cause of action. If the defendant, by permission of the court, had stricken out the denial in his answer, or amended it by inserting the admission orally made, a different question would have been presented at the trial upon the claim of the defendant to the right to conclude it.

Ho other question requires the expression of consideration.

' The judgment should be affirmed.

All concur, except Follett, Oh. J., not sitting.  