¶1I think it exceedingly doubtful whether this alteration in the note, after it was made and delivered by the defendant, was not new matter within the meaning and intent of the Code, which should have been specially set up as the defense, that the plaintiff might not be taken upon the trial by surprise. But as the point has been determined otherwise in a reported case, I think it is better that there may be uniformity in the practice to follow that decision, leaving it to. the court of last resort to settle the question finally if the construction given to the Code in that decision is erroneous. I therefore concur in the conclusion of Judge Van Hoesen.
¶2Order and .judgment affirmed, with costs.