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my two notes, one dated March 2d, 1854, at three months, for $2,237.19; the other dated July 5th, 1854, at sixty days, for $1,980, and all other notes of his received either from me or from Thompson, Skillman & Co., and charge the same to the account of the lumber delivered by me to your bank, as those notes are to be canceled by such account. If there is any other liability of said Sherman's, arising through me or through Thompson, Skillman & Co., you will also charge the same to my account of lumber, and release him from the same.

“ Yours respectfully,

“ RALPH POMEROY." In the letter of the cashier of the 16th July, 1856, he states the account at that date between the bank and Pomeroy, in which Pomeroy is credited $8,840.25 for lumber delivered, as per statement of Dr. Hewitt, before the 15th November, 1855.

When the evidence closed, the plaintiffs moved to strike out all the defendant's testimony respecting the agreement and the alleged extension of it, and respecting what was done under either, on the ground, among others, that such testimony did not sustain the allegations of the answer, but made a different case from the one set up in the answer.

The court denied the motion, and the plaintiffs excepted.

The plaintiffs also requested the judge, among other matters, to charge the jury that the defendant's evidence did not sustain the defense set up in his answer, and that the plaintiffs were entitled to a verdict; and also requested him to charge that none of the agreements accrued to the benefit of the defendant, or could be taken advantage of by him in this action. The judge refused the request, and the plaintiffs excepted.

The judge, after stating the nature and object of the action, and of the defense generally, charged the jury:

1st. That for the purposes of this trial, the defendant might avail himself of the transactions between Pomeroy and the bank to sustain his defense. To which the plaintiff's excepted.

2d. That under the agreement of 12th May, 1855, Pomeroy had a right to withdraw securities to the amount in value of


Arguments for Appellants.

the lumber and stuff described in the contract delivered and received. To this the plaintiffs excepted.

3d. That if the jury were satisfied that at the time he gave the order on the bank for this note, there was then an amount of lumber delivered to the bank exceeding in value the amount of the note, and that none of the securities had then been withdrawn, the defendant would be entitled to a verdict, otherwise the plaintiffs would be entitled to a verdict. To this the plaintiffs excepted.

The jury found a verdict for the defendant. The plaintiffs made a case, and on that and an affidavit of their cashier, that he had acted as their agent in preparing the case for trial, and was greatly surprised, on the trial, by the testimony in relation to the lumber transaction between Poineroy and the bank, and the admission thereof under the pleadings in the action, moved, at Special Term, for a new trial, which was denied.

The defendant entered judgment on the verdict for costs, and the plaintiffs appealed to the General Term, from the judgment, and also from the order denying a new trial. The General Term affirmed the judgment and order. The plaintiffs appeal to this court, from the judgment, and in their notice of appeal give notice that they will ask this court to reverse the order of the Special Term, denying the motion for a new trial.

John M. Martin, for the appellants.

I. The defendant's note, by its terms, and by the law applicable to it, was payable in money. (Chitty on Bills, 433, and cases cited; Cook v. Satterlee, 6 Cow., 108.)

And under a plea of payment it must be proved that the payment was made in money or its equivalent. (Saunders Pl. and Ev., 715, and cases.)

And if there be no payment in money or its equivalent, the defense is more in the nature of accord and satisfaction than payment. (Id.)

Of such evidence there was a total failure in this case; and in the absence of all material allegations, except payArguments for Appellants.

ment, the justice ought to have instructed the jury that the plaintiffs were entitled to recover, as requested by them. (Gasper v. Adams, 28 Barb., 441; Whittaker v. Merrill, 30 Barb., 389; Codd v. Rathbone, 19 N. Y., 37; Moore v. McKibbin, '33 Barb., 246; Lyon v. Blossom, 4 Duer, 318; Russell v. Conn, 20 N. Y., 81–83.)

II. Under the Code of 1852, payment, like counterclaim and accord and satisfaction, is new matter and must be specially pleaded, under section 149 of the Code; and all facts necessary to be proven must be alleged, or evidence thereof will be excluded. (Barzill v. Isham, 12 N. Y. [2 Kern.], 9, 17; McK’yring v. Bull, 16 N. Y., 297, 309; Allen v. Patterson, 7 id. [3 Seld.], 476, 478; Belknap v. Sealey, 14 id. [4 Kern.], 143, 153; Freeman v. Fulton Ins. Co., 14 Abb. Pr., 398; Rode v. Rutger's Ins. Co., 6 Bosw., 23; Bank U. S. v. Smith, 11 Wheat., 174; Texier v. Gowin, 5 Duer, 399; Safford v. Drew, 3 id., 632; Smith v. Leland, 2 id., 497.)

III. A party has a right to be apprised of the nature and facts of his opponent's case, that he may know how to prepare to meet it. (Cooper's Pl., 7; Welf. Pl., 85; Smith v. Clark, 12 Ves., 481; Crocket v. Lee, 7 Wheat., 522; Lyon v. Tallmadge, 14 Johns., 516; Consequa v. Fanning, 3 Johns. Ch., 587.)

And if either party neglect so to apprise his opponent, and evidence, of which no notice is contained in the pleadings, is admitted, the injured party has a right to a new trial at his opponent's expense. (Barton v. Dunlap, 2 Mills Const. Rep., 140; The People v. Holmes, 5 Wend., 191, 199; Mills v. McCoy and wife, 4 Cow., 406, 407; Carrier v. Dellay, 3 How. Pr., 173; Prindle v. Aldrich, 13 id., 466, 471; Sage v. Mosher, 17 id., 367.)

In this case the answer gave no notice of the defendant's intention to prove payment any other way than by cash.

It was wholly silent as to the agreement, and the facts stated therein, and as to the renewal and performance of it by Pomeroy, as sworn to by him; and none of these matters being at issue, no evidence of them was legally admissible. (Code, $ 149; The New York Central Ins. Co. v. The

Arguments for Appellants.

National Protection Ins. Co., 20 Barb., 468, 473; Kelsey v. Western, 2 Comst., 500, 509, and cases cited under 2d Point.)

Such proof, and the unexpected admission of it under such pleadings, could scarcely fail to surprise the plaintiff, and such is proved to have been the result by the affidavit of . Mr. Beach. (See the cases of Van Geison v. Van Geison, 10 N. Y., 316, and Seeley v. Engell, 3 Kern., 582, cited by Justice Bosworth in his opinion.)

IV. The plaintiffs had a right to presume that no evidence but such as the answer gave notice of, would be admitted on the trial; and the admission of it is a surprise for which a new trial will be granted. (Boyce v. Yoder, 2 J. J. Marshall, 515; Starkweather v. Loomis, 2 Verm., 573; Helm v. Jones, 9 Dana, 134; Trowbridge v. Didier, 4 Duer, 450; Hughes v. Wood, 5 id., 603, note; Graham v. McCoun, 5 How., 353; 1 Code R. N. S., 43; Littlejohn v. Mune, 3 Paige, 280; Voorhies’ Code, p. 267, note C, and cases cited.)

This, it is submitted, shows a clear case for a new trial.

V. But if the agreement had been set forth in the answer, the evidence of it would have been improperly admitted, because the matters in it do not affect the defendant's obligation to pay his note to the holder; and therefore do not constitute a defense to the plaintiffs' action.

A breach of an agreement between the plaintiffs and Pomeroy, that the plaintiffs will surrender Sherman's note to Pomeroy upon certain conditions, does not release Sherman from his obligation to pay the note; nor does it furnish any legal reason why Sherman should not pay it to the plaintiffs if they hold it.

Sherman is bound by his contract to pay his note to the holder, whoever he may be.

He was no party to Pomeroy's agreement, and there is no privity between him and the plaintiffs in respect to it.

Pomeroy's agreement could not be set up by Sherman as an accord and satisfaction even; because matters received in satisfaction must be given by the debtor and not by a stranger. (Clow v. Borst, 6 Cow., 37; Stark's adm'r v.

Arguments for Respondent.

Thompson's ex., 3 Monroe, 296; Grimes v. Bolfield, Cro. Eliz., 541.)

Pomeroy's alleged performance of his agreement with the plaintiffs never was accepted by them as payment or otherwise; and they never gave him the note. Pomeroy may have a right of action against them for a breach of their agreement with him; but Sherman has nothing to do with the controversy, nor can he be a party to it. (See James V. Isaacs, 12 C. B., 791.) If evidence of the agreement respecting the lumber was properly admitted, then the plaintiffs' evidence of the value of the lumber was improperly excluded.

If the court shall be of opinion that the defendant's answer was unproved in its entire scope and meaning," or that Pomeroy's agreement cannot be set up by Sherman as a defense to the plaintiffs' action, then the plaintiffs are entitled to a reversal of the judgment against them, and to an order for such final judgment in their favor as ought to have been given at Special Term, in that view of law.

C. W. Sandford, for the respondent.

I. The answer of the defendant formed a complete issue, upon which the plaintiffs went to trial. It set up the payment and satisfaction of the note by Pomeroy, their original debtor, and they were thereby fully apprised of the defense to be proved at the trial. (Van Geison v. Van Geison, 12 Barb., 520; 16 N. Y., 304.)

II. If the plaintiffs deemed the allegations in the answer as indefinite or uncertain, they should have applied by motion to make it more certain and definite, under section 160 of the Code. (Seely v. Engell, 3 Kern., 548, II; Howell v. Frazer, 1 Code R., N. S., 270; Bement v. Wisner, 1 id., 143.)

III. The pretense of surprise by the proof of Pomeroy's settlement, is simply absurd. The defendants had their cashier in court, with all their papers relating to the Pomeroy lumber transactions, and witnesses to prove the value of the lumber and the expenses incurred in its storage and sale.

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