Opinion
December Term, 1902.
Brainard Tolles, for the appellants.
Henry A. Forster, for the respondents.
This action was in ejectment. At the conclusion of the trial the court directed a verdict for the plaintiffs upon the issues involved, except as to the damages claimed, which question was submitted to the jury, and it having reported in favor of the plaintiffs in a specified sum, which was doubled by the court, judgment was entered from which defendants have appealed.
There have been two trials of the action. On the former, plaintiffs had a judgment which, on appeal to this court, was reversed and a new trial ordered. ( Barson v. Mulligan, 66 App. Div. 486.) The facts established upon the second trial, so far as the same relate to plaintiffs' title, are substantially the same as those established upon the first trial. They are fully stated in the opinions delivered upon the former appeal, and, therefore, it is unnecessary to restate them here. It is sufficient to say that such facts established title in the plaintiffs, and by reason thereof, the right to the possession, unless such right were defeated by the defense relied upon, which was substantially to the effect that the defendant Agnes K. Mulligan, prior to the 1st of October, 1897, was, and at all times thereafter had been, the owner and holder of a mortgage on the premises in question, given by Selena Barson on the 1st of October, 1853.
Upon the trial the defendants proved the giving of the mortgage by Selena Barson; that the defendant Agnes K. Mulligan, by mesne assignments, acquired the same on the 28th of June, 1888, and then rested. The plaintiffs then proved in rebuttal that on the 6th of July, 1888, the defendant Mulligan assigned the mortgage to one Steers, and rested. The defendants then attempted to prove by parol evidence that the assignment to Steers, while absolute in form, was really given as collateral security for the payment of a loan made by a bank of which Steers was president to the defendant Agnes K. Mulligan; that the loan was, in fact, paid prior to the death of the life tenant, and the mortgage formally reassigned to the defendant Mulligan on the 6th of October, 1897, four days after the death of the life tenant. This proof was objected to, the objection sustained and exceptions taken, and these exceptions present the principal questions to be decided upon this appeal.
We are of the opinion that the exceptions are not well taken. First. The proof was not within the issue. The answer alleged that Mrs. Mulligan was prior to the 1st of October, 1897, and at all times thereafter had been, the owner and holder, by certain mesne assignments, of the mortgage referred to. She could not, under this allegation, prove by parol evidence that an assignment absolute upon its face was, in fact, only given as collateral security for the payment of a loan. ( Mutual Life Ins. Co. v. Robinson, 24 App. Div. 570.) No such issue was presented by the pleadings and it was one which the plaintiffs could not anticipate would be raised, and one which they ought not to have been compelled to try. The purpose of pleadings is to notify parties in advance of the trial of the issues to be tried in order that they may properly prepare for the trial. Second. It cannot be said that the court erred in excluding the evidence, because at the time it was offered it was discretionary with the court whether or not it would receive it. Upon a trial a party is bound to produce all his evidence before he closes his side of the case, and after he has closed his case and rested it is within the discretion of the court whether or not to allow a reopening of the case to supply omissions or to receive further testimony, but such discretion should be sparingly exercised. ( Marshall v. Davies, 78 N.Y. 414; Agate v. Morrison, 84 id. 672; Young v. Johnson, 123 id. 226.) In Marshall v. Davies ( supra) the court said: "No rule for the conduct of trials is more familiar than that the party holding the affirmative is bound to introduce all the evidence on his side before he closes. ( Hastings v. Palmer, 20 Wend. 225.) He must exhaust all his testimony in support of the issue on his side before the testimony on the opposite side has been heard. * * * He can afterwards introduce evidence in rebuttal only. Rebutting evidence in such cases means, not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove." Here, the defendants, if they desired to prove that the mortgage, after it was acquired by the defendant Mulligan, was assigned to Steers only as collateral security for the payment of a loan, and that the loan was paid prior to the death of the life tenant, and that a formal reassignment was made after his death, should have offered such proof before they rested. They could not gamble upon the chance that the plaintiffs did not know that the mortgage had been assigned to Steers, and if they had acquired such information, then offer further proof in explanation of it. This rule is fairly stated in the head note of Fox v. Matthiessen (84 Hun, 396; S.C. affd., 156 N.Y. 691): "The plaintiff in an action has no right to withhold a part of his testimony until he has ascertained how far the defendant's testimony would contradict the same, and then offer the balance of his testimony in rebuttal. It is discretionary with the trial court how far it will permit the reopening of a case on rebuttal, and its ruling in that respect is not reviewable upon appeal." It is also urged that a question of fact was presented as to the death, intestate and without issue, of George Barson. The complaint alleges the existence of such facts, and we do not find that the same are anywhere denied in defendant's answer. There being no denial of them, they were admitted. Other questions are raised by the appellants, but they do not seem to be of sufficient importance for consideration.
We are of the opinion that the judgment and order should be affirmed, with costs.
VAN BRUNT, P.J., O'BRIEN, INGRAHAM and HATCH, JJ., concurred.
Judgment and order affirmed, with costs.