The record shows that the defendant did not deny any of the allegations of the complaint, but set up affirmative defenses. Hence, .when the case was called for trial, nothing remained for the plaintiff to prove. It is to be conceded that defendant’s admissions upon the trial did not affect the right to the affirmative, but, under the state of the pleadings as disclosed by the return, the affirmative was with the defendant. Under the circumstances it was reversible error for the trial justice to refuse, as he did, the latter’s request, made at the opening of the trial, to open and close the case. Conselyea v. Swift, 103 N. Y. 604, 9 N. E. 489; Trenkmann v. Schneider, 23 Misc. Rep. 336, 51 N. Y. Supp. 232, and citations.
The judgment must, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.