
    Jacob Kotlowitz and Samuel Kotlowitz, Co-partners, Doing Business as Kotlowitz Bros., Appellants, v. David Silberstein, Sam Silberstein and Joseph Silberstein, Co-partners, Doing Business as New York Manufacturing Co., Respondents.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Trial — allegations of payment — pleading affirmative defense — opening and closing of case.
    Where in an action to recover an unpaid balance of the agreed price for work, labor and services and material furnished, defendants after admitting the receipt of certain material from plaintiffs alleges payment in full and pleads as an affirmative defense that the work was not properly done and that the material was unmarketable and was returned or its return tendered, plaintiffs have the right to open and close.
    Where, after the opening of the case to the jury by both parties, defendants’ attorney conceded that plaintiffs would have been entitled to recover' if the goods had been properly made, and, after one of the plaintiffs had testified that he sold caps to defendants who examined them, plaintiffs rested, and defendants testified that some of the caps made by plaintiffs were defective and were returned, a ruling at the close of the ease that defendants had the affirmative of the issue which gave them the right to open and close was erroneous.
    The denial of a party’s right to open and to close requires the reversal of a judgment against him.
    Whitaker, J., dissents.
    
      Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered upon a verdict rendered in favor of the defendants.
    Henry H. Silver, for appellants.
    Nathaniel H. Kramer, for respondents.
   Lehman, J.

The pleadings in this case set forth the performance of work, labor and services, and the furnishing of material incidental thereto, of the agreed price and reasonable value of $319.15, and that no part of said sum has been paid except the sum of $210.42. The answer denies these allegations, except that the defendants admit having received certain materials from the plaintiffs above named which defendants paid for in full.” The answer further sets forth an affirmative defense that the work was not properly done and that the merchandise furnished was unmarketable and was returned or its return tendered to the plaintiffs.

There can be no question but that under the pleadings the affirmative was upon the plaintiffs, and they had the right to open and close. It appears that at the trial, after both parties had opened to the jury, the defendants’ attorney stated: I will concede that the plaintiffs would have been entitled to the balance for which this action was brought, if the goods had been properly made. ’ ’ The plaintiffs then testified that they sold caps to the defendants and that the defendants examined them. The plaintiffs then rested and the defendants took the stand and testified that some of the caps made by the plaintiffs were defective and were returned by them to the plaintiffs, and the trial thereafter developed practically into a trial of this issue. When the evidence was all in, the trial justice stated that the defendants had the affirmative on this issue and gave them the right to close. The plaintiffs duly-excepted to this ruling.

It seems to me that there can be no doubt that this ruling was erroneous. The material allegations of the complaint were not admitted by the answer and the plaintiffs at the beginning at the trial had the burden of proving these allegations. Even if the subsequent concession of the defendants was sufficient to satisfy this burden and to leave merely an affirmative defense to be litigated, and I am unwilling to concede that the concession was sufficient even for this purpose, still the right to open and close is determined by the pleadings at the beginning of the trial and cannot be changed by any concessions made during the trial. Lake Ontario National Bank v. Judson, 122 N. Y. 278; Cilley v. Preferred Accident Insurance Co., 109 App. Div. 394; affd. on opinion below, 187 N. Y. 517. This right in a jury trial is substantial and its denial requires the reversal of the judgment.

Page, J.; concurs ; Whitaker, J., dissents.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.  