The only question which is entitled to consideration on this appeal arises on an exception to a denial of the defendant’s motion to accord to it the opportunity and the right to open and close the case. Assuming that the defendant was entitled to have that motion granted, the question here presented is whether such an error requires us to reverse the judgment. In late years there has been a radical change in the view that an appellate court was bound to reverse a judgment for errors which do not affect the substantial merits of the controversy. The Legislature has attempted to correct what was considered to be the result of such injustice by legislative provisions, both in civil and criminal proceedings, in which the appellate courts are directed not to reverse judgments for purely technical *242errors, but only for errors which affect the substantial merits of the controversy. In 1912 the Legislature amended section 1317 of the Code of Civil Procedure by providing that “after hearing the appeal, the court [Appellate Division] must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” (See Laws of 1912, chap. 380.)
It seems to me that this is an error which we are directed to disregard. It is true in this case that the defendant, having discharged the plaintiff during the time the contract was in force, was bound to justify such a discharge and to affirmatively prove that the plaintiff had failed to perform his duties, or for some other reason the defendant was justified in terminating the contract. But whether the defendant should open the case to the jury and should have the final argument before it, before the case was submitted, did not affect a “substantial right.” Considering the nature of the controversy, the method of trial, and the testimony in the case, I do not think that a jury would have found that the defendant was justified in abrogating its contract. But assuming that it was a question for the jury, the mere right to sum up after his opponent has summed up cannot, I think, be considered as a matter of substance which in any way affected the result. Jurors are not to be treated as such irrational beings as are liable to be confused or influenced by the fact that one or other counsel was the last to talk to them. In a case of this kind, which did not involve any particular sympathy or prejudice, and which a jury of business men would be peculiarly competent to determine, I am not willing to say that the denial of such a motion could have affected the verdict- of the jury. I think under the provisions of section 1317 of the Code of Civil Procedure, we are required to disregard this exception as not affecting a substantial right of the defendant.
I am, therefore, in favor of affirmance.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.