
    George W. Conselyea, and another, Ex’rs, etc., Resp’ts, v. Francis Swift, App’lt.
    
    
      (Court of Appeals,
    
    
      December 7, 1886.)
    
    1. Trial—Right to open and close—Belongs to party holding the AFFIRMATIVE.
    One cause of action alleged in the complaint makes out a perfect case upon a promissory note against the defendant, as indorser, and the answer" denies none of the plaintiff’s allegations, -but sets up affirmatively that the defendant was an accommodation, indorser, and that the note was paid out of moneys in the hands of plaintiff’s testator appli-" cable thereto, and adds, on information and belief, “thatthe said plaintiffs are not the lawful owners and holders of said note, and that he is not indebted to them thereupon in any sum whatever.” Held, that this was not a denial of any averment contained in the complaint; that, the whole burden of proof lay upon the defendant, and that he had the right to open and close the evidence. .
    3. Complaint—Allegations not controverted by answer to be taken as true—Code Civ.- Pro., § 523. . .
    Code Civil-Procedure, section 522, requires each material allegation in the complaint not controverted by the answer to be taken as true.
    Appeal by defendant from a judgment entered on an order of the general term of the supreme court of the sec-. and. department, affirming a judgment after trial at the King’s county circuit.
    The seventh cause of action was thus stated in the complaint.
    “And for a seventh and further separate cause of action against said defendant upon information arid belief these plaintiffs respectfully allege:
    
      “First. That at the city of Brooklyn, on or about the 1st day of May, 1882, one George Swift made his certain promissory note in writing whereby for value received he. promised to pay to the order of himself, one month after the date thereof at the First National Bank, the sum of five thousand eight hundred and twenty-five dollars ($5,825).
    
      “Second. That thereafter the- said George F. Swift duly indorsed and delivered the same so indorsed.
    . “ Third. That thereafter the said defendant above named duly indorsed the said note and "delivered the same so indorsed. '
    
      “Fourth. That thereafter and before maturity and for value said note lawfully came to the possession of one William Conselyea.
    
      .“Fifth. That when said- note became ■ due-and payable, the same .was.duly presented, -for payment at the place-where the same was made payable, and payment thereof -demanded, which was refused, whereupon the same was duly protested- for non-payment, at an expense to said William Oonselyea of one dollar and twelve cents ($1.12), of all of which due notice was given to the defendant above named.”
    ' The answer to this cause of action was as follows:
    “And further answering the said complaint the defendant says that the note mentioned and described in the •seventh cause of action therein was made by George Swift for the purpose of raising money, and the same was indorsed by this defendant at the request of the said George Swift "without any consideration and for the purpose of enabling the maker to raise money thereon, and the said William ■Oonselyea thereafter, well knowing the premises, indorsed said note for the purpose aforesaid, and this defendant avers on information and belief that it was then and there agreed by and between the said George Swift and the said William Oonselyea, that the said note was to be paid by the said George Swift out of the avails of a certain contract which the said George Swift then had with the city of Brooklyn, and that an order upon the proper office of the city to pay the amount of said note out of the moneys coming due to said Swift on said contract should be made by him in writing and should accompany and be delivered with the said note to the First National Bank, Brooklyn, to which said note was to be presented for discount, and that under no' circumstances should this defendant be chargeable as indorser upon said note or otherwise with the payment thereof by the said William Oonselyea or the said George
    ' “And this defendant further says on information and belief, that said note was thereafter accompanied by the •order aforesaid, duly discounted by the said bank and the proceeds thereof used for the purpose of said contract, and that before the said nóte became due, the said William Oonselyea, who was theretofore and up to that time interested with the- said George Swift in the contract aforesaid, took from the said George Swift an assignment thereof together with the moneys due and to grow due thereon, it being understood and agreed' between them that such assignment was subject to the order which accompanied the note aforesaid for the payment thereof, and that the said note should be paid out of the moneys which should fall due under said contract, after said assignment, the same as if said assignment had not been made, and as if the moneys so falling due should become due to said Swift instead of the assignee thereof aforesaid.
    “That said note was subsequently paid at maturity out of moneys, which fell due under said contract or was paid by the said Coriselyea out of his own funds, he taking to himself the moneys applicable to and appropriated for the payment thereof, out of said contract as aforesaid.
    “And this defendant says on information and belief as aforesaid, that said plaintiffs are not the lawful owners and holders of said note, and he is not indebted to them thereupon in any sum whatever.”
    
      James Troy, for app’lt; J. Stewart Boss, for resp’t.
    
      
       Reversing 39 Hun, 656, mem.
      
    
   Danforth, J.

The complaint contains seven causes of action. As to the first six no question arises. The seventh makes out a perfect case upon a promissory note against the-defendant as indorser, and the answer denies none of the plaintiffs’ allegations, but sets up affirmatively that the defendant was an accommodation indorser, and that the note was in fact paid out of moneys in the hands of the plaintiffs’ testator applicable thereto. The defendant adds, upon information and belief, “that the said plaintiffs are not the lawful owners and holders of said note, and that he is not indebted to them thereupon in any sum whatever.” This clause is relied upon by the respondent as an answer to the appeal. It is not sufficient. It is not a denial of any averment. Neither of the facts so controverted are alleged in the complaint. It is merely an affirmative statement of a conclusion drawn from the preceding new matter in the answer; and, while it might have been omitted as wholly unnecessary, it put in issue no part of the plaintiffs’ case. The whole burden of proof lay upon the defendant, and without evidence the plaintiff was entitled to a verdict. Fleischmann v. Stern, 90 N. Y., 110.

The learned counsel for the respondent has placed upon his points cases from other states. We do not refer to. them, for our own Code is upon this subject very explicit, and requires each material allegation, in the complaint, not controverted by the answer, to be taken as true. Section 522. In this case, as before suggested, no allegation is denied. It was therefore for the defendant to. establish the-defense set up, and as he thus held the affirmative, he had the right to open and close the-evidence; and the learned trial, judge erred in ruling to the contrary.

The judgment appealed from should therefore be reversed,, and a new trial granted, with costs to abide the event.

All concur, except Ruger, C. J.,' and Finch, J., not. Voting. .......'  