Judgment and order reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The trial court erred in charging the jury to the effect that negligence of the defendant would defeat Ms defense based on fraud (Angerosa v. White Co., 248 App. Div. 425) and in granting respondent’s request to charge “ that if the defendant paid interest of $600 on or about April 3, 1933, with a knowledge of the existence of such mortgage, the jury must find a verdict' for the plaintiff;” payment of interest under such circumstances constituting merely evidence to be considered by the jury on the question. (Hall v. Grays, 227 App. Div. 337; Potts v. Lambie, 138 id. 144.) The trial court properly ruled that the plaintiff had the right to open and close the case (L. O. N. Bank v. Judson, 122 N. Y. 278, 284; Van Vliet v. Kanter, 139 App. Div. 603; Usefof v. Herzenstein, 65 Misc. 45) and properly granted plaintiff’s motion to dismiss defendant’s second defense and counterclaim. (Pers. Prop. Law, § 31; Sophie v. Ford, 230 App. Div. 568.) All concur. (The judgment is for plaintiff in an action on a promissory note. The order denies a motion for a new trial on the minutes.) Present — ■ Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.