79 N.Y.S. 31 | N.Y. App. Div. | 1902
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 defend
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
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.