Miller v. Meyerhoff

Williams, J.: The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event. [534] The court erred in denying the defendant the right to open and close the case on the trial. She had the affirmative of the issue made by the pleadings, and a denial of such right was error which requires a reversal. The action was brought upon a promissory note made by the defendant and delivered to the deceased. The complaint alleged the making and delivery of the note to the deceased during her lifetime, and that she thereupon became the owner and holder thereof. It also alleged the death of the deceased; the appointment of plaintiff as the administrator of her estate, and that he qualified and was acting as such administrator, letters having been issued to him. ■. It then . alleged non-payment of the note, and that plaintiff, as administrator, was entitled to recover thereon, and that defendant was indebted to him, as administrator, in the amount of the note and interest. The answer denied that the plaintiff was .entitled to recover on the note, or that defendant was indebted to him. There were no other express denials. The answer alleged that the deceased, before her death, caused the note to be delivered to the defendant and directed that the same be paid to a third party and for his benefit. It will thus be seen that all the facts alleged in the complaint were admitted — only conclusions were denied. The only issue made by the pleadings was ¡as to the transfer of the note by the deceased before her death, which was an affirmative defense. It is well settled that the test as to who has the affirmative is whether the plaintiff is entitled to recover upon the pleadings, and without any proof. If he is, then the defendant has the affirmative upon any defense set up in the answer. (Lake Ontario National Bank v. Judson, 122 N. Y. 278.) The action was brought upon promissory notes and overdrafts. The answer admitted the giving of the notes and denied the other allegations of the complaint which covered the overdrafts, and then set up an affirmative defense. On the trial the defendant admitted the overdrafts and then claimed the affirmative as to the counterclaim. The court held the question was to be determined upon the pleadings and the admission upon the trial could not aid the defendant in securing the affirmative, though after the admission the plaintiff had no proof to make to maintain his action. In Claflin v. Baere (28 Hun, 204), to which our attention is called, [535] the complaint alleged the sale, and delivery of the goods at agreed prices amounting in the aggregate to a certain sum, which remained wholly unpaid. The answer admitted the sale and delivery of the goods as claimed, but alleged the sale was upon a credit of four months, which time had not expired when the action was commenced, and then denied every allegation not specifically admitted.The court held that the complaint should be construed as alleging that the purchase price was payable at a time prior to the commencement of the action, and the general denial'in the answer covered this allegation, that the plaintiffs had, therefore, as a part of their case to prove that' the contract of sale was to this effect, and the defendants were denied the right to the affirmative upon this issue. This view of the case was adopted in Plenty v. Rendle (43 Hun, 568). Claflin v. Jaroslauski (64 Barb. 463), to which our attention is called, was an appeal from an order striking out an answer as sham. The action was upon a note made by two partners to the order of one of them, and indorsed by him and delivered to the plaintiffs. The defense was that the note was given, not for an indebtedness of the firm, but for the individual partner to whom it was payable, and the plaintiffs knew it. It was held that the answer was good. The case is meagerly reported, and it is not apparent from the statements made how this defense amounted to anything so long as the partners both executed the note. It does not appear just what the allegations in the complaint were, or whether there was an express admission or denial in the answer of any of the allegations of the complaint. The court said: “ An answer which practically puts in issue the promise (contained in the note) sets up no substantive defense, but is a denial of the plaintiffs’ allegation.” We fail to see how that case aids us in the determination of the question we are considering. In Conselyea v. Swift (103 N. Y. 604) the complaint set forth a cause of action upon a note against the indorser thereof. The answer alleged as an affirmative defense that the note was in fact paid out of the moneys in the plaintiffs’ hands applicable thereto, and that the plaintiffs were not the owners and holders of the note and that defendant was not indebted to them thereon. There was no express admission or denial of any allegation of the complaint. The [536] defense set up was an affirmative one. The whole burden of proof with reference thereto was upon the defendant, and in the absence of proof the plaintiff was entitled to a verdict. The defendant, therefore, was entitled to the affirmative. In the present case, applying the well-settled test, as laid down in Lake Ontario National Bank v. Judson (supra), it is- apparent that the defendant was entitled to the affirmative. Upon the pleadings the plaintiff was entitled to a verdict without giving any proof. Upon the facts alleged in the complaint the conclusion followed that the deceased was the owner and holder of the note when she died.. Assuming that the complaint should be construed as alleging such ownership of the note at death there is no express denial of such allegations in the answer as there was in Claflin v. Baere (supra), and in the absence of such denial the allegation must be regarded as admitted. The allegation of such ownership would be of a conclusion merely and not a fact, and the denial thereof would raise no issue. The defendant must have denied the facts from which such conclusion followed, or she must have alleged new facts from which a contrary conclusion would follow. She adopted the latter course. Having alleged those facts she had the burden of proving them.. The burden of disproving them was not upon the plaintiff. He was not called upon to prove a negative because of the allegation of new facts in the answer. He was entitled to rest upon the conclusion arising from the facts alleged in the complaint that the deceased having once become the owner of the note such ownership continued until the contrary was proved by the defendant, until proof was given of the new facts alleged in the defendant’s answer. The defendant was, therefore, entitled to the affirmative on the trial. These suggestions lead us to conclude that the judgment and order should be reversed and a new trial granted,, with costs to the appellant to abide event. Spring and Hiscock, JJ., concurred ; McLennan, J., dissented in an opinion, in which Hash, J., concurred.