
    Houghtaling v. Lloyd.
    
      (Supreme Court, General Term, Third Department.
    
    July 7, 1891.)
    Admissions in Answer—Effect of Amendment.
    Where an alleged fact is admitted in the original answer, and afterwards an amended answer is filed which contains no such admission, such fact will be taken as denied by the amended answer, which supersedes the original answer.
    Appeal from Schoharie county court.
    Action by Harmon Houghtaling against Harriet L. Lloyd. A judgment rendered by a justice of the peace in favor of plaintiff was affirmed by the county court, and defendant appeals.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      L. C. Van Tuyl, for appellant. J. H. Mattice, (Isban Hess, of counsel,) for respondent.
   Learned, P. J.

The learned county judge in his mem. states that he was at first inclined to reverse this judgment on the ground that there was no proof of the agency of Lewis Lloyd for his wife. But he says the agency was alleged in the answer, fifth defense. The learned county judge, therefore, referred to the original answer. That was superseded by the amended answer, and the amended answer contains no such admission. Taking the pleadings, then, as they were at the time of the trial, the agency was not admitted, but was denied. Therefore it was necessary to prove it. There is no proof. The plaintiff says he had dealings with,Lewis L. Lloyd as the agent of his wife. But this evidence was objected toas no proof of agency, and as improper; and nothing is stated by the plaintiff, the only witness, showing that Mr. Lloyd acted or was authorized to act for his wife. There is no evidence whatever showing that the defendant was liable. We need not inquire whether, if the original answer had been offered in evidence, it would have been competent proof of agency, because it was not so used. The parties on this appeal must rest on the pleadings as they stood at the time of the trial, and on the evidence then given. This is not a case in which we can be satisfled that the judgment is right. Code, § 3063. There is nothing shown which affects the defendant. Judgment of county court and justice of peace reversed, with costs. All concur.  