33 Barb. 218 | N.Y. Sup. Ct. | 1860
The right to begin, and the right to reply, in trials at the circuit, is unquestionably of much practical consequence. The privilege of making the opening statement of the case to the jury, and of making the closing argument, upon the evidence, is an advantage not unappreciated, or inconsiderately sought and claimed, by the counsel for litigating parties in courts of justice. In many cases it is of the highest importance, and particularly so where the facts are complicated and there is contrariety in the evidence, or it is nicely balanced and slight circumstances are likely to turn the scale. In cases where there is a great preponderance in the testimony on one side it may be quite immaterial, but there is obviously a right rule on the subject, that should be asserted and maintained. Under our present system of pleading, these questions are much pressed upon the judges at the circuit, and I think no great uniformity of practice prevails. Before the code, the question who was entitled to begin and reply did not often arise at the circuit. Most defenses could be given in evidence under the general issue, and if special pleas were interposed they were generally put in with the general issue, and in other cases the special defense was set up in the shape of a notice accompanying the general issue. In such cases the plaintiff always had the affirmative of the issue upon the record, and was entitled to begin. ■ Now there is no general issue, and defendants are bound to set up their defenses specially; and as the pleadings are required to be verified, it will rarely happen that a defendant can safely deny all the allegations of the complaint. When, before the code, the defendant chose not to plead the general issue, but to admit upon the record the .plaintiff’s cause of action and seek to avoid it by some affirmative defense, the rule and the practice of the courts in England prevailed in this state, (2 Dunlap Pr. 637. 1 Paine & Duer 522. Grah. P. 289,) and the English books of practice were in general use. The general rule, in all such cases, as recognized in this state and still the law, is well stated in
In the ajDplication of the rule of these cases to the present case it is quite apparent that the circuit judge erred in giving the plaintiff the opening to the jury. The action is upon a promissory note, which is set out in the complaint. The answer admits the making of the note, and sets up the defense of usury. The plaintiff was entitled, on producing the note on the trial, to have a verdict for the amount of it, without giving any evidence. The jury could have cast the interest, or if no proof was given, it could have been computed under the direction of the court by the party or his counsel, and the jury directed to render a verdict for the amount. Ho- proof was necessary, and it appears by the case that none was in fact given, of the amount due on the note, on the trial. The affirmative of the issue—the onusprobandi—was clearly upon the defendant. He was bound to give proof to establish ' his defense, or the verdict was to pass against him of course, upon the face of the record. It was therefore the right of the defendant to begin—to open his defense to the jury, and to give his evidence. The proof of the plaintiff would be in answer to such evidence so first given by the defendant, and if he did not make out a prima facie defense, the plaintiff need give no evidence.
It being error, therefore, to disallow the defendant’s claim to begin, and to allow the plaintiff to open and reply, the question remains whether this error is a proper ground for a new" trial. Upon this question there is some conflict of decision. There are several English cases which hold that a new trial-should not be granted, unless manifest injustice has been done. (Bird v. Higginson, 2 Adol. & Ellis, 160. Hecker
In South Carolina, in Singleton v. Willet, (1 Nott & McCord, 355,) the defendant claimed the right to open and reply at the circuit, and it was denied him. The constitutional court held this to be error, and granted a new trial on this sole ground. And in Johnson v. Widener, (Dudley’s Rep. 325,) the court of appeals of that state reasserted the same rule, and granted a new trial, for the same error. In this state I have been unable to find that this question has ever particularly received the consideration of this court. I find no reported case on the subject. In the last edition of Clinton’s Digest, at page 3216, note 17, vol. 3, I find, a reference to two cases decided by the superior court of Buffalo, where it was held that “ where the answer avoids without traversing the complaint, the better rule is to give the defendant the opening and close of the case, but refusing to do so is not error.” The cases referred to in this note are not reported, and we cannot see, therefore, how the question arose, or how fully it was examined. I regret that those cases are not before the public, that we might have the aid of that highly respectable court in passing upon this ques
Smith, Johnson and Knox, Justices.]
1st. The plaintiff in all cases where the damages are unliquidated, has the right to open the case to the jury and have the reply.
2d. Whenever the plaintiff has any thing to prove, on the question of damages, or otherwise, he has the right to begin.
3d. In other cases, where the damages are .liquidated or depend upon mere calculation—as the casting of interest— the party holding the affirmative of the issue has the right to begin.
4th. The affirmative of the issue, in such cases, means the affirmative in substance, and not in form, and upon the whole record.
5th. That the denial of the right to begin, to the party entitled to it and claiming it at the proper time, is error for which a new trial will be granted; unless the court can see, clearly, that no injury or injustice resulted from the erroneous decision.
As a new trial must be granted, it is unnecessary to consider the other questions raised on the argument.
New trial granted.