
    Celia Cohen, as Executrix of Philip Glasser, Deceased, Respondent, v. Elsie Gellers, Appellant.
   It was error for the trial court to direct judgment in favor of the

plaintiff solely on the ground that the defendant failed to establish her affirmative defense by a fair preponderance of the evidence. Irrespective of the defense interposed by the defendant, the burden was upon the plaintiff to establish her cause of action by a fair preponderance of the evidence (cf. Farmers’ Loan & Trust Co. v. Siefke, 144 N. Y. 354, 359; Whitlatch v. Fidelity & Cas. Co. of N. Y., 149 N. Y. 45, 50-51; Matter of Tipple, 118 Misc. 430). Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ. concur.  