Millerd v. Thorn
New York Court of Appeals
Kelson Millerd, .Theron J. Paine and Robert C. Brown, sued William B. Thorn and Albert B. Smith, in the supreme court, for goods sold. The complaint alleged that plaintiffs were copartners at the time of the sale, and the time of suing,\and it alleged the sale in the usual form.
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Kelson Millerd, .Theron J. Paine and Robert C. Brown, sued William B. Thorn and Albert B. Smith, in the supreme court, for goods sold. The complaint alleged that plaintiffs were copartners at the time of the sale, and the time of suing,\and it alleged the sale in the usual form. The answer of Thorn denied the allegation of plaintiffs’ copartnership ; and also expressly admitted that defendants had been copartners, and that while such partners, they bought the goods of the plaintiffs, but alleged that afterward they dissolved on an agreement that Smith should take the assets and pay all the…
1Opinion of the CourtGrover, J.
The party holding the affirmative upon an issue of fact, has the right, upon the trial, to open and close the proofs, and to reply, in summing up the case, to the jury. This is a .legal right, not resting in the discretion of the court, and when denied, the denial may be excepted to, and the ruling reviewed upon appeal from the judgment (Lindsley v. European Petroleum Co., 10 Abb. Pr. N. S., 107; S. C., 3 Lans., 176; Elwell v. Chamberlin, 31 N. Y., 614).
The defendant in this case held the affirmative of the issue. The admission in the answer that the defendant purchased the goods of the…
2Cases cited4 opinions
- Waydell v. LuerCourt for the Trial of Impeachments and Correction of Errors · 1846
- Arnold v. CampNew York Supreme Court · 1815
- Colgrove v. TallmanNew York Supreme Court · 1869
- Lindsley v. European Petroleum Co.New York Supreme Court · 1870