
    EMOTT SEWARD and another, Appellants, v. GEORGE TORRENCE and another, Respondents.
    Appeal from a judgment, in favor of the defendants, entered upon a verdict directed by the court.
    This action was brought upon a promissory note. Upon the trial evidence was given tending to show that the note had been paid. The General Term reversed the judgment on the ground that, as the answer did not aver that the note had been paid or settled, and as no motion was made to amend the pleadings -to conform to the proof, such defenses could not be regarded as properly before the court.
    
    
      R. O. Elliott, for the appellants.
    
      Robert W. Todd, for the respondents.
    
      
       Brazill v. Isham, 2 Kern., 9; O’Toole v. Garvin, 1 How., 95; Wright v. Delafield, 25 N. Y., 266.
    
   Opinion by Lawrence, J. ■

Davis, P. J., and Daniels, J., concurred.

Judgment reversed, and new trial ordered, -costs to abide the event.  