This is an action by a discharged employee against his employer for damages for the discharge. The employment, the agreed rate of compensation, and the discharge before the end of the stipulated term, were all admitted by the answer, the defendant pleading that, for reasons alleged in the answer, the discharge was justified. It was also sought to be shown that after the discharge and during the agreed term of service plaintiff had been engaged in work from which he ultimately derived a profit. The questions raised by the answer were duly submitted to the jury, and so far as concerns such submission and the conclusion at which the jury arrived, we find no reversible error.
A serious question is presented, however, by the defendant’s exception to the court’s refusal to accord to it the right of opening and closing the case. It is a well-settled rule' in this State that the party having the affirmative upon an issue of fact, especially in an action triable before a jury, has the right to open and close the proof and to reply in summing up the case to the jury. This is regarded as a legal right not resting in the discretion of the court, and a denial thereof may be excepted to and the ruling reviewed upon appeal. (Millerd v. Thorn, 56 N. Y. 402; Murray v. N. Y. Life Ins. Co., 85 id. 238; Mat*240ter of Hopkins, 97 App. Div. 127; Heilbronn v. Herzog, 165 N. Y. 98.) The test as to when a defendant has such a right is thus stated in HeiTbronn v. Herzog (supra): “The general rule upon this subject is that if the plaintiff, without giving any evidence, is entitled to recover upon the pleadings, the affirmative of the issue rests with the defendant.”
In the principal case the complaint alleged the plaintiff’s employment under a written contract at an agreed salary payable monthly for a term of one year from September 1, 1908; that in pursuance thereof plaintiff entered upon said employment and continued therein until the 31st day of January, 1909, when he was discharged “ without cause,” and that thereby he suffered damages in a smn equal to the agreed compensation from the date of discharge to the date at which the contract of employment by its terms expired. All of these allegations were admitted by the answer, except that it was denied that the discharge was “ without cause,” and the damages were also denied. Neither of these denials raised any issue as to which the plaintiff was called upon to offer proof.
As to the denial that plaintiff was discharged “without cause,” it was said in Linton v. Unexcelled Fireworks Co. (124 N. Y. 533): “ That the plaintiff was discharged before the contract had expired was material. That he was discharged without cause was immaterial, so far as the complaint was concerned, because a recovery could be had without proving it. It was sufficient for the plaintiff to allege a violation of the contract by the defendant. His effort to anticipate and deny any possible defense to his cause of action was surplusage. ”
So also as to the damages. The rate of salary agreed upon and the date of discharge having been admitted, plaintiff was entitled prima facie to recover as damages the amount of the agreed salary for the unexpired term of the contract. (Milage v. Woodward, 186 N. Y. 252.) Nor was it incumbent upon plaintiff to show affirmatively, as a part of his case, that he had sought for and been unable to obtain other employment. (Allen v. Glen Creamery Co., 101 App. Div. 306.) It follows that under the pleadings there was nothing for the plaintiff to prove, and he was entitled to judgment upon the allegations of the complaint and the admissions in the answer.
*241The refusal of defendant’s application to be allowed to open and close the case to the jury was, therefore, legal error.
It is urged, however, that notwithstanding error may have been committed in this regard, it should be overlooked because it does not appear that any prejudice resulted to the defendant. If it did clearly so appear, it would certainly be our duty to disregard the error; and it would so appear if there was no question in the case that should have been submitted to and determined by the jury, and if upon the evidence it had been the duty of the judge to direct a verdict for the plaintiff for the amount claimed (Millerd v. Thorn, supra), and probably also if the evidence had so strongly predominated in favor of plaintiff that it would have been the duty of the court to have set aside a verdict in favor of defendant. No such case, however, was presented. The defendant alleged and sought to prove incompetency and insubordination on plaintiff’s part, and it was a fair question for the jury upon the evidence whether or not this defense had been made out.
For the error referred to, the judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.
Clarke, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.