Opinion
March 10, 1937.
Present — Sears, P.J., Edgcomb, Thompson, Crosby and Lewis, JJ.
Judgment and order reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The trial court erred in charging the jury to the effect that negligence of the defendant would defeat his defense based on fraud ( Angerosa v. White Co., 248 App. Div. 425) and in granting respondent's request to charge "that if the defendant paid interest of $600 on or about April 3, 1933, with a knowledge of the existence of such mortgage, the jury must find a verdict for the plaintiff;" payment of interest under such circumstances constituting merely evidence to be considered by the jury on the question. ( Hall v. Grays, 227 App. Div. 337; Potts v. Lambie, 138 id. 144.) The trial court properly ruled that the plaintiff had the right to open and close the case ( L.O.N. Bank v. Judson, 122 N.Y. 278, 284; Van Vliet v. Kanter, 139 App. Div. 603; Usefof v. Herzenstein, 65 Misc. 45) and properly granted plaintiff's motion to dismiss defendant's second defense and counterclaim. (Pers. Prop. Law, § 31; Sophie v. Ford, 230 App. Div. 568.) All concur. (The judgment is for plaintiff in an action on a promissory note. The order denies a motion for a new trial on the minutes.)