
    Erastus Crawford, Respondent, v. Thomas M. Tyng, Appellant.
    (City Court of New York—General Term,
    February, 1894.)
    Where the plaintiff has the affirmative upon the pleadings and the defendant does not claim it upon the trial, it is not error'to deny the defendant’s application for the affirmative in summing up.
    Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury.
    
      T. M. Tyng, appellant in person.
    
      Jacob Fromme, for respondent.
   Fitzsimons, J.

The plaintiff had the affirmative as the record shows, and thus had a right to open and close the case. The defendant did not claim the affirmative, and the record does not show that it was denied him ; therefore, it was proper for the trial justice to deny his application for the affirmative in summing up.

The paper marked plaintiff’s Exhibit FTo. 3, and set out on page 82 of the printed case, was certainly properly admitted in evidence, because the witness Scott testified that it was a copy -of a paper given him (Scott) by the defendant Tyng personally, ivliich paper the witness said Tyng claimed fixed his compensation and claim to the fund in the “ Schreyer matter.”

The testimony submitted fully justifies the verdict rendered, and we find no error in the charge of the trial justice.

The judgment should, therefore, be affirmed, with costs.

Ehrlich, Oh. J., and Van Wyck, J., concur.

Judgment affirmed, with costs.  