
    Frederick, William Fischer, Respondent, v. William C. Frohne, Appellant.
    (Supreme Court, Appellate Term,
    November, 1906.)
    Argument of counsel'—Right to open and close — Denial of right, when error.
    Where, at the trial after the jury has been sworn, the plaintiff waives so much of his claim as the defendant has not admitted by his answer and the parties then proceed to introduce evidence touching defendant’s counterclaim, the defendant has the affirmative of the issue and the right to close the case to the jury; and the denial of such right is" error for which a judgment against him xwiII be • reversed. •
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Few York, seventh district, borough of Manhattan.
    Robinson, Biddle & Ward (Forman B. Beecher, of counsel), for appellant.
    John P. Schuchman, for respondent.
   Gildersleeve, J.

The complaint herein set forth three causes of action against the defendant, two of which were wholly admitted by the answer. The third cause of action alleged an indebtedness on the part of defendant for six months’ rent. The answer admitted owing for five months, but denied that the defendant owed for the sixth month. When the parties met for trial and after the jury was sworn, the plaintiff’s attorney waived the claim for rent for the sixth month, claiming only for five months, which the defendant had by his answer admitted. The defendant, having set up a counterclaim, then proceeded to sustain it and put the defendant and other witnesses upon the stand in support thereof. The plaintiff’s attorney, at the close of the testimony on the part of the defendant, addressed the jury regarding his defense to the defendant’s counterclaim and proceeded to introduce testimony contradictory to the defendant’s contention. At the close of the entire case the defendant claimed the right to close to the jury which was refused him and to which refusal he took an exception. The denial of the right, where the defendant has the affirmative of the issue, to close the case to the jury has frequently been held to be error. Elwell v. Chamberlin, 31 N. Y. 611; Millerd v. Thorn, 56 id. 402; Conselyea v. Swift, 103 id. 604.

The plaintiff, by voluntarily withdrawing his claim for the last month’s rent, the only item disputed by the defendant, in effect amended the complaint in that respect and left nothing to be proven by the plaintiff to entitle him to a judgment, had there been no counterclaim interposed by the defendant.

Dugro and Dowling, JJ., concur.

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