Cohen v. Gellers

*955It was error for the trial court to direct judgment in favor of the

plaintiff solely on the ground that the defendant failed to establish her affirmative defense by a fair preponderance of the evidence. Irrespective of the defense interposed by the defendant, the burden was upon the plaintiff to establish her cause of action by a fair preponderance of the evidence (cf. Farmers’ Loan & Trust Co. v. Siefke, 144 N. Y. 354, 359; Whitlatch v. Fidelity & Cas. Co. of N. Y., 149 N. Y. 45, 50-51; Matter of Tipple, 118 Misc. 430). Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ. concur.