#### August Trenkmann, Appellant, *v.*Minnie L. Schneider, Respondent.

(Supreme Court, Appellate Term,

April, 1898.)

Action for rent — Denial of an allegation of nonpayment as affecting the right to open and close — That right is substantial.

Allegations, contained -in the complaint in an action to recover rent, to the effect that the defendant has neglected and refused to' pay rent for three months and that there is due to the plaintiff a sum stated, are material to the cause of action and, when denied by the answer, entitle the plaintiff to the affirmative of the issue and require a new trial where the important right to open and close has been denied him.

Appeal by the plaintiff from a judgment of the General Term of the City Court of New York, affirming a judgment entered in the defendant’s favor upon the verdict of a jury. ,

The nature of the action and the facts, "so far as they are material, are stated in the opinion.

Edward S. Clinch, for appellant.

Theodore Sutro, for respondent.

Giegerich, J.

This action was brought to recover rent reserved in a written lease made by the plaintiff to the defendant. The complaint alleges' the execution of the lease, the defendant’s entry into possession of the demised premises, the performance by the . plaintiff of all conditions of the lease, and the defendant’s breach, which is alleged in these words: ■ “ That the defendant has neglected and refused to pay the rent which became due and payable on- the 1st day of May, June and July, 1893, respectively, and there is now due and owing to the plaintiff therefor the sum of $625, with interest, * * "* .” The answer denies these averments, except the first two, and sets up a constructive eviction by reason of the plaintiff’s failure to supply steam heat and steam power covenanted for.by the lease..

Upon the [opening of the trial the defendant claimed the affirma- . tive, and the trial justice, against the plaintiff’s objection and exception, granted the application and gave her the right of opening and closing the case. The defendant argues that the allegations of *337the complaint so denied were not material, and should, therefore, be disregarded, and that, even in the absence of proof showing performance, together with defendant’s neglect and refusal to "pay the rent alleged to be due, the plaintiff would have been entitled to a direction of a verdict" in his favor, upon the uncontradicted allegations of the complaint.

In Lent v. N. Y. & M. R. Co., 130 N. Y. 504-512, the necessity for alleging nonpayment in an action upon contract for the payment' of money was discussed and decided adversely to the. position contended for by the plaintiff in this action, the court saying, among other things: “H the plaintiff is not required to allege a breach of the contract, or state the amount due, as his verification would cover only the facts alleged, the clerk, under sections 420, 1212 and 1213 of the Code, would be authorized to enter judgment for the whole amount called for by the'contract, and this without proof of the amount due thereon. This would be contrary, to the whole spirit of the Code, and would require the clerk to presume a fact neither alleged nor proved, viz. — that no. payments had been made.” And in Cochran v. Reich, 91 Hun, 440, it was held, that the allegations of nonpayment in an action for a breach of a covenant to pay rent reserved in a lease was material, and must be proven when denied.

The case of Hurliman v. Seckendorf, 9 Misc. Rep. 264, cited by the respondent, has no application to the case at bar so far as it relates to the allegation of nonpayment, for the reason that there the making of the. lease and the refusal to pay the amount demanded in the complaint were admitted. The allegations of the complaint respecting nonpayment or breaches of contract being, as. we have seen, material to the plaintiff’s cause of action, it was incumbent upon him to prove them (Lent v. N. Y. *&*M. R. Co., *supra;*Cochran v. Reich, *supra;*Hicks-Alixanian v. Walton, 14 App. Div. 199), and, having the affirmative of the issue, the plaintiff had the right to open and' close the case, and the denial of this right was reversible error. Conselyea v. Swift, 103 N. Y. 604; Lake Ontario Nat. Bk. v. Judson, 122 id. 278; Parrish v. Sun Pub. Assn., 6 App. Div. 585.

The right under consideration is substantial, it not resting in the discretion of the trial judge, and must be determined upon the state of the pleadings as they stood, and not upon admissions or •oral withdrawals made during the trial. Parrish v. Sun Pub. Co., *supra.*

*338These views dispense with the necessity of considering other points urged by the appellant upon this appeal, and it follows that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildeesleeve, J., concur.

Judgment reversed and new trial ordered, with costs -to appellant to abide event. -