## Facts

- Two automobiles collided on a state highway between Lake Placid and Saranac Lake on January 2, 1938, damaging both vehicles.
- The plaintiff sued for property damage, alleging the other driver’s negligence.
- Defendants denied liability and asserted a counterclaim for their own property damage, alleging the plaintiff’s negligence.
- In his case-in-chief, the plaintiff testified and called the mechanic who repaired his car, then rested.
- Defendants presented evidence supporting their defense and counterclaim.
- After defendants rested, the plaintiff sought to call three passengers from his car as eyewitnesses to how the collision occurred.
- The trial court excluded the passengers’ testimony as “not proper rebuttal.”
- The jury found for defendants on their counterclaim, and judgment was entered accordingly.

## Issues

1. In a case with a counterclaim, did the trial court err by excluding the plaintiff’s eyewitness testimony offered after defendants’ proof on the ground that it was not proper rebuttal?

## Decision

- The appellate court reversed the judgment entered on defendants’ counterclaim and ordered a new trial.
- The court held the trial court erred by excluding the plaintiff’s passenger-eyewitness testimony.
- Although plaintiffs generally must present all proof supporting their affirmative claim before resting, the counterclaim entitled the plaintiff to rebut defendants’ proof with testimony contradicting the counterclaim’s factual basis.

## Legal Principles

- A plaintiff ordinarily must present all evidence supporting the affirmative claim in the case-in-chief and may not hold back proof to meet later developments.
- Rebuttal evidence may contradict an adversary’s proof and controvert affirmative facts the adversary must establish.
- When a defendant asserts a counterclaim seeking affirmative relief, the opposing party may introduce evidence after the defendant’s case that is directed to defeating the counterclaim, even if it also supports the party’s original claim.
- Trial courts have discretion over the order of proof, but excluding admissible rebuttal evidence that is material to liability on a counterclaim is reversible error when it prejudices the opposing party.

## Conclusion

Because defendants sought affirmative relief by counterclaim, the plaintiff was entitled to introduce passenger eyewitness testimony after defendants’ proof to contradict defendants’ version of the collision and defeat the counterclaim; excluding that testimony required reversal and a new trial.


Seguin v. Berg, 260 A.D. 284, 21 N.Y.S.2d 291 (App. Div. 3d Dep’t 1940)