
    Lena Keller, as Executrix of the Last Will and Testament of Leon S. Keller, Deceased, Respondent, v. Adolf Prince, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Evidence — admissions — admissibility as affected by subject-matter of admission — pleading.
    In an action on a promissory note, evidence that it was delivered on a condition precedent which had not» been fulfilled does not vary the note and is admissible.
    The exclusion, of such evidence is not sustainable on the ground that an admission in the answer of the delivery of the note precludes proof inconsistent therewith, where the plaintiff makes no motion for judgment on the pleadings but goes to trial, fully apprised that defendant intended to show that there was no delivery of any binding contract.
    Appeal' by the defendant from a judgment of ‘the Oity Court of the city of Hew York, entered upon a verdict rendered in favor of the plaintiff by direction of the court and from an order denying a motion for a new trial.
    Harry A. Gordon, for appellant
    Katz & Sommerich (Maxwell 0. Katz and Otto C. Sommerich, of counsel), for respondent.
   Lehman, J.

The plaintiff has brought an action upon a promissory note. The answer denies the allegations of the complaint except that it admits that the defendant made and delivered his “ writing ” containing all the terms of the promissory note set forth in the complaint, and that it admits presentation for payment, nonpayment and protest. In a separate defense the defendant sets forth that the defendant made and delivered an instrument in the form of a promissory note, being the instrument more particularly described in the complaint, upon a condition precedent, however, which has never been fulfilled.

Atjhe trial the defendant produced a witness who testified apparently without objection that the instrument sued upon was delivered upon an express condition precedent. The plaintiff then moved to strike out this testimony on the ground that the evidence seeks to vary the terms of a written instrument, and this motion was granted. There can be no doubt but that this evidence did not vary the written instrument and should not have been stricken from the record on this ground. Smith v. Dotterweich, 200 N. Y. 299. The respondent, however, seeks to sustain the ruling on the ground that the answer expressly admits the delivery of the instrument and that this, admission is binding upon the defendant and precludes him from setting up other facts inconsistent with this admission. Fleischmann v. Stern, 90 N. Y. 110. There is some force in his contention that the defense that a contract was delivered upon a condition precedent may be shown upon a general denial, and that the admission of the making and delivery of the contract would be sufficient to give the plaintiff judgment on the pleadings even if the answer thereafter sets up a statement of the transaction inconsistent with the admission. I do not think, however, that in this case we are called upon to consider the question whether the answer contains any admission of the making and delivery of a contract or promissory note or merely an admission of the delivery of a writing in the form of a note. Pleadings are intended to apprise parties of the issues which they must meet; they are not intended as a means by which an unwary suitor may be trapped. In this- case the plaintiff failed to move for judgment on the. pleadings, but went to trial fully apprised that the defendant intended to show that there was no delivery of any binding contract. At no time did he object that the pleadings were technically insufficient to permit this defense. Under such circumstances the rulings of the trial judge cannot be sustained in any strained interpretation of the admissions of the answer.

Judgment should be reversed and a new trial granted, with costs to abide the event.

Seabuby and Page, JJ., concur.

Judgment reversed and new trial granted, with costs to abide event.  