
    ELLEN DE GRAFF, Appellant, v. JOHN CARMICHAEL, as Executor, etc., of CALVIN FORBES, Deceased, Respondent.
    
      The right to dose the case.
    
    Appeal from a judgment in favor of the defendant entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. This action was brought upon a $3,000 note made to plaintiff by defendant’s testator. The answer alleged three defenses: First. A want of consideration. Second. The short statute of limitations. Third. Hnsoundness of mind of the testator at the time of signing the note. At the Circuit a verdict was rendered for the defendant. The plaintiff insisted that the court erred in refusing to allow plaintiff’s counsel to make the closing address to the jury..
    The court at General Term said: “ As to the third point raised by the appellant it is only necessary to inspect thé pleadings to determine this question, and it can only be determined by so doing. The action was upon a note. Its execution was not denied. There was nothing in the first instance for the plaintiff to prove. "When the trial was ready to proceed it seems no suggestion was made as to which party had the affirmative. The plaintiff’s counsel stated his case and presented the note, and upon its appearing to be mutilated called the witness to identify it and to explain how it came in that condition. But this was in reference to no issue raised by the pleadings. When the evidence was closed the question arose for the first as to who had the right to make the closing address to the jury, and the learned justice very properly held that the defendant’s counsel had that right. Certainly this was so according to the pleadings, noi do I see that any thing had taken place upon the trial by which the defendant had waived such right. A different ruling would have been erroneous and would have entitled the defendant to a reversal, in the event that the verdict had been in the plaintiff’s favor. (.Mil-lord v. Thorn, 56 N. Y., 405; Fl/mell v.Chamberlcmh, 31 id., 614.) ”
    
      8. W. JaoJcson, for the appellant. F. Fish, for the respondent.
   Opinion by

Osborn, J.

Learned, P. J., and Bocees, J., concurred.

■Judgment and order affirmed,-with costs,  