The only question involved upon this appeal is whether or not the trial court committed error in' ruling that the plaintiff had the affirmative of the issues raised by the pleadings.
*537The law is well settled that if it is necessary for a plaintiff to prove any fact in order to entitle him to recover, he is entitled to the “ opening and closing.” In order to deprive him of such right the pleadings must be in such shape that if the defendant does not make any proof, the plaintiff is entitled, without giving any proof, to judgment for the amount demanded in the complaint. The rule is stated in the head note in Lake Ontario National Bank v. Judson (122 N. Y. 278) as follows: “ The question as to which party has this right (of opening and closing the case on trial) is to be determined by the pleadings, and the test is whether, without any proof, plaintiff, upon the pleadings, is entitled to recover upon all the causes of action alleged in his complaint. If he is not, no matter how little proof the issue may require, if it is requisite to establish it by evidence, plaintiff has the right to open and close the case. If he is, and defendant alleges a counterclaim controverted by plaintiff, or sets up an affirmative matter of defense, which is the subject of trial, the defendant has that right.”
This action was commenced in Justice’s Court on the 15th day of November, 1901, by the plaintiff, as administrator of the goods, chattels and credits of Anna C. Miller, deceased, to recover upon a promissory note for seventy-five dollars made by the defendant in October, 1897. The complaint, which was in writing, alleged, in substance, that plaintiff was administrator; that the note was made by the defendant, and was by her delivered to plaintiff’s intestate; that no part of the same had been paid, and that there was now due and owing to the plaintiff, as administrator, from the defendant, the amount of said note with interest, and judgment was demanded accordingly. The answer, which was also in writing, admitted in effect the making of the note and its delivery to the plaintiff, as stated in the complaint. It then alleged, “ That thereafter and on or about the first day of March, 1899, the said payee caused the said note to be delivered to this defendant, that the same be paid to William Meyerhoff and for his benefit.” The defendant then denied that plaintiff is entitled to recover on said note any sum whatever, or that defendant is indebted to him in any sum.
It seems to me clear that under this answer it was incumbent upon the plaintiff, in order to make out a prima facie case, to prove that his intestate was the owner and holder of the note at the *538time of her decease. To be sure the defendant admits its delivery at the time it was made, but alleges in effect that the deceased redelivered it to her for the benefit of another, and that, therefore, the plaintiff is not entitled to recover. In effect the defendant says, I admit I made the note in question and delivered it to the ■ deceased, but the deceased gave it back to me for the purpose of having me- pay the amount thereof to William Meyerhoff, and, therefore, the plaintiff never had the note; has no interest in it, and is not entitled to recover upon it.
In effect the defendant by her answer denies plaintiff’s ownership ; denies thát there was any such delivery to his intestate as ■ entitled him to have the note in his possession, tinder those circumstances, in order to entitle the plaintiff to recover, it was essential that he should prove that at the time of the death of his intestate she was the owner and entitled to the possession of the note, and that upon her death he became entitled to such possession. This was exactly the Course pursued upon the trial. The plaintiff did not have the note in his possession; it had been lost, but he gave proof tending to show that his intestate was the owner of the note at the time of her death, and was entitled to the possession thereof.
It is of no consequence that a fact which it is necessary for a plaintiff to establish in order to entitle him to recover in an action is denied in defendant’s answer by an affirmative allegation rather than by a specific denial. If such a fact is put in issue it is incumbent upon the plaintiff to prove it. The plaintiff, to recover upon a promissory note, must allege facts which in law establish ownership. The case of Claflin v. Jaroslauski (64 Barb. 463) was an ' action upon a promissory note. The plaintiffs alleged in their complaint that the two defendants, as copartners, made their promissory note payable to the order of one of them ; that the payee indorsed the note and delivered it to the plaintiffs and that no part of it had been paid. The answer sets up that the note was given, not for the indebtedness of the'copartnership, but for that of the individual' partner to whom it was payable, and that the plaintiffs knew this fact. The court said: “ The answer, when considered as to substance rather than form, does not- set up a substantive defense. It says that the note, although apparently the note of the firm, *539never was a promise by them, for a good consideration, to pay anything. Of course, the note is but evidence. The real ground of the action is the promise, made for a good consideration. It would seem, therefore, that an answer, which practically puts in issue the promise, sets up no substantive defense, but is a denial of the plaintiffs’ allegation.”
Claflin v. Baere (28 Hun, 204) was an action to recover for goods sold and delivered. The plaintiffs alleged in their complaint that the defendants were copartners; that between September 3, 1878, and December 3,1878, plaintiffs sold and delivered to defendants, as such copartners, certain goods of the value and at the agreed price of $6,269. The answer admitted the allegations of the complaint. It then set up as a separate defense that the goods were sold on a credit of four months, which term had not expired when the action was commenced, and then denied each and every allegation in the complaint not therein specifically admitted. It was held that the plaintiffs were entitled to open and close the case. The court said: “We are not considering, nor do we need to, the question of proof as to the nature and kind of evidence which would be sufficient to make out the plaintiffs’ side of the controversy. The answer, setting up that a credit was given on the sale of the goods, is not a substantive defense, but it is in effect a denial that the defendants promised to pay for the goods at a time prior to the commencement of the action, and that the debt is due as claimed by the plaintiffs. This alone constitutes a denial of an essential fact which the plaintiffs were required to maintain on the trial, in some form, either by the defendants’ admissions or by proper proof establishing the fact. (Fridenbergh v. Jaroslauske,* 64 Barb. 463.) The denial contained in the answer also puts in issue the same fact.”
As we have seen, the answer in the case at bar was in effect a denial that the plaintiff’s intestate was the owner of the note in suit at the time of her decease, and it is entirely immaterial that such issue was raised by a separate defense rather than by a specific denial. It was also said in Claflin v. Baere (supra): “ When the defendant in an action insists .that he holds the affirmative and may *540open the trial and conclude the argument, he is called upon by the form, of his pleadings to make it appear beyond all reasonable doubt that he has admitted the essential facts upon which the plaintiff bases his right of action, and he cannot call upon the court to make a critical examination of the pleadings to determine whether he is entitled to the privilege claimed or not”
It seems to me that the remark of the learned court is particularly applicable to the case at har, and that in any event, in view of the state of the pleadings, the ruling of the trial court did not constitute error. The course of the trial makes it perfectly clear that the court correctly interpreted the pleadings and the intention of the parties as evidenced thereby. The 'entire evidence offered by the defendant was for the purpose of establishing that plaintiff’s intestate did not own the note át thé time of her decease, and for that reason alone urged that the plaintiff was not entitled to recover: The pleadings in this case sought to frame the issues between the parties in a Justice’s Court, and in any event they ought not to be construed with the same strictness Of rule as is applicable to pleadings in a court, of record, especially when it is apparent that a reversal will in effect destroy plaintiff’s cause of action, although it is clear from the proofs, all of which'are before this court, that the defendant had no defense to the note in question upon the merits.
We think the judgment should be affirmed, with costs.
Nash, J., concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, on questions of law only, the facts having been examined and no error found therein..
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Olaflin v. Jaroslauski.— [Rep.