
    (84 Hun, 805.)
    HARLEY v. FITZGERALD.
    (Supreme Court, General Term, Second Department.
    February 11, 1895.)
    1. Trial—Right to Open and Close.
    The right to open and close is a substantial right, and failure to grant it in a proper case is a fatal error.
    2. Same—When Defendant mat Open and Close.
    Defendant is entitled to open and close where the answer contains no denial, but admits the indebtedness sued on, and sets up a counterclaim. •
    
      Appeal from Orange county court.
    Action by George Harley against Edward Fitzgerald to recover for services as a bartender. The justice rendered judgment in favor of plaintiff, which was affirmed by the county court, and defendant appeals.
    Reversed.
    Argued before DYKMAN, PEATT, and CULLEN, JJ.
    A. H. F. Seeger, for appellant.
    Wm. D. Dickey, for respondent.
   CULLEN, J.

This is an appeal from a judgment of the county court affirming a judgment recovered in the court of a justice of the peace.. There is but one point urged on this appeal,—that on the trial before the justice and jury the defendant was denied the right to open and close the case. That this right is substantial, and that a failure to grant it in a proper case is fatal error, are settled by authority. Murray v. Insurance Co., 35 N. Y. 236; Millerd v. Thorn, 56 N. Y. 402. By section 2868 of the Code, the justice must hear, try, and determine actions before him according to law. So the principles cited must apply in such cause. 3 Wait, Law & Prac. 470, 724. The plaintiff made oral complaint for $45, with interest from September 1,1893, for wages. The defendant filed a written answer, pleading a general denial and a counterclaim. When the case came on for trial he filed an amended answer, denying nothing, but admitting the indebtedness of $45, without any allegation as to the interest. The answer then set forth two counterclaims. On this answer, it is plain that the defendant had the affirmative. True, the answer did not admit interest; but an admission was not necessary, as the failure to deny the allegation of the complaint operated as an admission. Nor was it necessary for the plaintiff to prove his case. Section 2891 of the Code provides that if the defendant fails to appear and answer the plaintiff cannot recover without proving his case. But this does not apply where the defendant does appear and answer. Gregory v. Trainor, 4 E. D. Smith, 58. Nor is it material whether the second defense pleaded be considered a counterclaim or a set-off. In either case, the burden of proof to establish it was on the defendant. The judgment of the county court and of the justice should be reversed, with costs. All concur.  