Rogers v. . Vosburgh

Miller, J. The order of the General Term, affirming the order of the Special Term, and striking out the defendants’ answer as frivolous and sham and affirming the judgment was erroneous. The defendants’ answer set up as a defense, that after the making and delivery of the note the same was materially altered by the plaintiff without the knowledge of the defendants, by changing the date thereof from April 1, 1872, to April 1,1873. If this was a material alteration, then the defense interposed was valid and legal. It is not necessary to cite authorities to sustain the proposition that an alteration of a note which postpones the time of payment for a year, is a vital one. The question of ratification of the alteration by a subsequent payment is not now before us, and did not arise upon the hearing of the motion. As there is no proof upon the subject, we are not called upon to consider whether, if the alleged alteration was made after April 1, 1875, it could have affected the liability of the defendants under the statute of limitations. The answer was neither frivolous nor sham, and it was not the province of the court, without proof, to decide the question of fact raised by the answer upon a mere inspection of the note upon which the action was brought. The *231 order and judgment should be reversed and the motion denied, with ten dollars costs of opposing the same, and costs of appeal to the General Term and of this court. All concur. Order and judgment reversed, and motion denied.