
    EVA HEATON, Respondent v. LEONARD F. TRACY, Appellant.
    
      Opening and closing argument, which party entitled to same.
    
    Where the defendant has the affirmative of an issue, he has the right to open and close the argument to the jury, and it is error to deny him the right. Murray v. N. Y. Life Ins. Co., 85 N. T. 236. It is a legal right not resting upon the discretion of the court, and if denied and exception is taken to the denial, is subject to review on appeal.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 7, 1889.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial upon the minutes.
    
      James II. Elliot, attorney, and Austen G. Fox, of counsel for appellant, argued:—
    It was error to deny to the defendant the reply in summing up and the closing argument. The defendant had the affirmative of the issues-. He had the right to open and to close; certainly the same right to close that he had to open. “ The right of the party holding the affirmative upon an issue of fact to open and close the evidence, and upon the final submission of the case to the jury to reply in summing up, is too well settled to admit of any question!” This is the language of the opinion of the court in Murray v. N. Y. Life Ins. Co., 85 N. Y. 236; citing Millerd v. Thorn, 56 N. Y. 402. See also: Elwell v. Chamberlain, 31 N. Y. 611; Hoxie v. Greene, 37 How. 97 ; DeGraff v. Carmichael, 13 Hun, 129; Linsley v. Europ. Petr. Co., 3 Fans. 176; Opper v. Caillon, 9 Daly, 157; Brennan v. Security Life Ins. Co., 9 Ib. 166; Katz v. Kuhn, 4 Ib. 296; Morss v. Gleason, 2 Hun, 31; Huntington v. Conkey, 33 Barb. 218; Ayrault v. Chamberlain, 33 Ib. 229 ; Davis v. Mason, 4 Pick. 156; Stormont v. Waterloo L. & C. Ass. Co., 1 F. & F. 22; Hill v. Fox, 1 Ib. 136; Geach v. Ingall, 14 Mee. & Wel. 95; Ashley v. Bates, 15 Ib. 589 ; Barker v. Malcolm, 7 C. & P. 101; Mills v. Oddy, 6 ib. 738 ; Huckman v. Fernie, 3 Mee. & Wel. 505. This is a legal right not resting in the discretion of the court, and when insisted on and denied may be excepted to, and the ruling reviewed upon appeal from the j udgment: Cases before cited; also Howard v. Hayes, 47 Super. Ct. (15 J. & S.) 89. In Davis v. Mason, 4 Pick. 156, before cited, the judgment was reversed on the sole ground of error in ruling upon this question, although the Appellate Court thought that the verdict was right.
    
      Barlow & Carman, attorneys for respondent, argued :—
    It was no error to deny the defendant the closing of the argument, as the burden of proof and, with that, the affirmative of the issues on the pleadings, as amended, still remained with the plaintiff. The plaintiff, in his complaint, alleges that on or about the 16 th day of January, 1882, the defendant made his certain promissory note in writing, bearing date on that day, wherein and whereby the said defendant promised to pay on demand, after date thereof, to the order of the plaintiff, the sum of $5,000, with interest from the date thereof, for value received, and delivered the said note to the plaintiff, who is now the lawful owner and holder thereof ; that the payment of said note was duly demanded and refused; that no part of said note has ever been paid, and that there is now due and owing to the plaintiff on account thereof the sum of $5,000, and interest thereon from the 16th day of January, 1883.
    The defendant in his answer, as amended, says: “ 2nd.—The defendant admits that on or about the 16th day of January, 1882, he delivered to the plaintiff a promissory note for the sum of $5,000, and that he has not paid the said note.” “ 3rd.—The defendant, further answering, alleges that he received no consideration nor value for the said note as aforesaid delivered by the defendant to the plaintiff, and that the same was and is wholly void for want of consideration.”
    Eight to open and close. If plaintiff has to give any evidence in order to be entitled to a verdict for the amount claimed, he has the right to begin by opening the case to the jury and adducing his evidence first. The recent decisions seem to regard the question as to which party shall open the case, as one of practice, to be regulated by the discretion of the judge, and that his decision upon it is not a subject of exception. In Booth v. Millns, 15 M. & W. 669, it was said that “ the weight of authority seems to hold that an erroneous ruling as to the right to begin, to be ground for a new trial, must have worked manifest injustice.” We cannot see that the defendant suffered from the ruling in the case, and if we had the power to review a decision upon a matter which is the subject of discretion Ave should not be disposed to reverse the judgment in the case for error in the exercise of discretion.
   By the Court.—Freedman, J.

The question presented by the appeal is not controlled by the pleadings as they originally stood. The answer, as amended upon the trial, entitled the plaintiff to the direction of a verdict for the amount of the promissory note sued upon, unless the defendant established at least one of the two affirmative defenses pleaded, viz.: duress and no consideration. Upon this issue the trial judge properly held that the defendant had the affirmative and that he was entitled to open the case.

The burden of establishing a defense' having thus been put on the defendant, and the defendant, as must be assumed from the case as settled, having given evidence upon which the jury might have found in favor of both grounds of defense, it was error thereafter to deny to the defendant the right to make the closing argument to the jury. Murray v. N. Y. Life Ins. Co., 85 N. Y. 236. The jury having found for the plaintiff, the error aforesaid calls- for reversal.

The judgment and order should be reversed and a new trial ordered with costs to appellant to abide the event.

Sedgwick, Ch. J., and Ingraham, J., concurred.  