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Salomon v. Fiske

Supreme Court, Appellate Term, First Department
Dec 1, 1912
78 Misc. 406 (N.Y. App. Term 1912)

Opinion

December, 1912.

Moos, Prince Nathan (Alfred B. Nathan, of counsel), for appellant.

William S. Evans, for respondent.


The action was brought to recover on three promissory notes. The answer does not deny any allegation of the complaint, but alleges an affirmative defense that the plaintiff accepted two hundred shares of stock in a certain corporation in payment. The only witnesses to the transactions were the plaintiff and the defendant. There was no dispute that the matter was discussed between the parties and that the stock was transferred to the name of the plaintiff at his suggestion and was retained by him for about four months, when he proposed to allow five dollars a share and requested a note from defendant for the balance. Defendant contended that the plaintiff agreed to accept the stock in payment of the notes, while plaintiff claimed that he received them conditionally, subject to investigation.

The defendant claimed the right to open and close the case, which was clearly his right, as on the pleadings the plaintiff would have been entitled to judgment without offering evidence. Payment being an affirmative defense, the burden rested upon the defendant. The denial of his demand to open and close the case constitutes reversible error, unless we can say that it was clearly not prejudicial. Conselyea v. Smith, 103 N.Y. 604; Lake Ontario N. Bank v. Judson, 122 id. 284; Heilbronn v. Herzog, 165 id. 98, 101.

The issue was sharply drawn; both parties were interested; and the circumstances and documentary evidence must be relied upon for corroboration. Under such circumstances the attorney who makes the answering argument to the jury has a decided advantage, and this was a right of the defendant of which he cannot be deprived.

LEHMAN, J., concurs; HOTCHKISS, J., taking no part.

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


Summaries of

Salomon v. Fiske

Supreme Court, Appellate Term, First Department
Dec 1, 1912
78 Misc. 406 (N.Y. App. Term 1912)
Case details for

Salomon v. Fiske

Case Details

Full title:ADOLPH SALOMON, Respondent, v . JOSIAH M. FISKE, Appellant

Court:Supreme Court, Appellate Term, First Department

Date published: Dec 1, 1912

Citations

78 Misc. 406 (N.Y. App. Term 1912)
138 N.Y.S. 422