#### Amelia Phyfe, Plaintiff-Respondent, *v.*John G. Dale, Defendant-Appellant.

(Supreme Court, Appellate Term,

December, 1910.)

New trial—Grounds — Rulings and instructions at trial — Denial of right to open and close.

In an action by a landlord to recover rent, where the tenant in his answer admits ■ the making of the lease but denies that any rent is due and pleads as a separate defense a breach on the plaintiff’s part of conditions of the lease amounting to constructive eviction, the defendant has the affirmative; and it is error for the trial court to prevent his exercise of that right.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Dew York, borough of Manhattan, fifth district.

Malcolm Sundheimer, for appellant.

Kelley & Connelly (Christian S. Lorentzen, of counsel), for respondent.

Platzek, J.

This action is brought to recover for three months’ rent under a written lease. .The answer admits the making of the lease, denies that any rent is due, and pleads, as and for a separate defense, the breach, on the plaintiff’s part, of the conditions of the lease amounting to .constructive eviction.

The case came on for trial before one of the justices of the Municipal Court and a jury. The stenographer’s minutes show: *“*Plaintiff’s attorney: The complaint stands admitted. The amount claimed to be due for rent for the three months is $240, and interest on that amount from September 1st, 1908. Plaintiff rests. Defendant’s attorney': The defendant claims here by reason of the answer that he has the affirmative in this action and desires to exercise his right of taking the affirmative. The court: Motion denied. Defendant’s attorney: Exception.”

*638The defendant having set up an affirmative defense and the plaintiff’s cause of action being admitted and the whole amount claimed with interest being conceded, the defendant had the affirmative of the issue, and the denial by the trial court of defendant’s right to open and close the case is reversible error.

In Hurliman v. Seckendorf, 9 Misc. Rep. 264, it is held that in an action f-or rent under a lease where the complaint alleged the making of the lease, that the lease provided for the payment of rent, that accrued rent was due; and the answer admitted the making of the lease and a refusal to pay the amount demanded, denying all other allegations of •the complaint and setting up affirmative defenses, that no material allegation of the complaint was denied and that the defendants had a right to the affirmative of the issue.

In Lake Ontario Nat'l Bank v. Judson, 122 N. Y. 278, Bradley, J., writing for the court, said “ The test is, whether without any proof, the plaintiff, upon the pleadings, is entitled to recover upon all the causes of action alleged in his complaint. If he is,, and the defendant alleges * * * any affirmative matter of defense in avoidance of the plaintiff’s alleged cause of action, and which is the subject of trial, the defendant had the right to open and close.”

Conselyea v. Swift, 103 N. Y. 604, is a case where the judgment appealed from was reversed solely upon the ground that the court below erred in refusing to allow the defendant to hold the affirmative of the issue and open and close the case. Murray v. N. Y. L. Ins. Co., 85 N. Y. 236; Smith v. Sergeant, 67 Barb. 243; Plenty v. Rendle, 43 Hun, 568.

As, for the error stated, tire judgment must he reversed,, and as a new trial may present a different state of facts, it is not necessary to consider the other questions raised upon the trial.

Judgment reversed and new trial granted, with costs to appellant to abide the event.

Guy and Gavegae, JJ., concur.

Judgment reversed.