
    Samuel J. Brown, Resp’t, v. Barnard Tausick, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed October 24, 1892.)
    
    Trial—Affirmative of issue.
    In an action upon a promissory note, where the answer admits the making of the note, does not deny the allegations of the complaint, but alleges that the note was given without consideration under an agreement that it was to be paid only out of the profits of a certain business that had realized no profits, the defendant has the affirmative of the issue, and a right to open and close, and the denial of such right is reversible error.
    Appeal by defendant from judgment entered on verdict of jury.
    
      Herman Fromme, for resp’t; M. L. Erlanger, for app’lt.
   Van Wyck, J.

The complaint alleged the making and delivery to plaintiff by defendant of his certain promissory note; the due presentation of same for payment, and its non-payment The answer specifically admitted the making of the note and did not deny any of the allegations of the complaint, and under § 522 of the Code they were therefore to be taken as true, and the plaintiff was entitled to recover without any proof, notwithstanding that the answer alleged affirmatively that the note was given without consideration under an agreement with plaintiff that the same was to be paid only out of the profits of a certain business that had realized no profits. The defendant claimed the affirmative, and requested the right to open and close to the jury, which, however, was denied him, and to which he duly excepted. The affirmative and the consequent right to make the closing address to the jury by the defendant, was in this case a substantial right, the denial of which entitles him to a reversal of the judgment. That such was his right is clearly shown bv the decision of our appellate authority in the Auerbach case, 18 N. Y. Supp., 453 ; 44 St. Rep., 493, in which Chief Justice Daly says: “ The right of the affirmative belonged to the defendant, who had affirmatively pleaded non-delivery of the note by him, and want of consideration.” So, too, in Grabosski v. Gewerz, 44 St. Rep., 127; 17 N. Y. Supp., 528, Judge Bischoff says: “ The defenses were limited to want of consideration and procurement of the note by duress, neither of which disputed the making and delivery of the note; and, before the burden of establishing the fact of consideration by a preponderance of the evidence could be imposed upon the plaintiff, it was requisite that the defendant should in the first place impeach the presumption of consideration by evidence from, which the want of consideration was made to appear, or could be inferred. The trial judge, therefore, properly ruled that the affirmative side of the case was with the defense.” At the trial of the case now under consideration the affirmative should have been awarded to the defendant, and the failure to do so was error which requires that the judgment appealed from be reversed and a. new trial granted, with costs to appellant to abide the event.

Ehrlich, Ch. J., and McCarthy, J., concur.  