On the former appeal in this case (97 Misc. Rep. 622) we pointed out that the alleged agreement in writing (a letter), whereby it was claimed by defendants that plaintiffs ’ assignor had agreed that the note in suit should not be payable until the fulfillment of a certain condition, was inadmissible in evidence for any purpose, first, because of its date and terms, which appeared on its face not to relate to the note in suit, and, next, because it was concededly surrendered and destroyed at or about the time that the note was delivered by defendants to plaintiffs’ assignor. It is now sought to reverse this judgment on the ground that either the agreement in writing or an equivalent parol promise made by plaintiffs’ assignor should have been admitted in evidence by the learned judge below in support of the defense that the note was ‘' materially altered. ’ ’
I am far from convinced that-the defense of material alteration can be relied on to render material evidence that blanks left in a note were filled in contrary to the authority conferred on the payee; or that proof of authority to fill in blanks in manner or tenor inconsistent with the remaining text of the note is ever admissible. See Farmers National Bank v. Thomas, 79 Hun, 595, 601, 602. As I view the record on this trial, however, those questions of law need not *696be here determined because nowhere in the record was the issue on which a reversal is now sought clearly tendered. Defendants’ counsel without adequate, or indeed as I view it without any, explanation of the theory on which he purposed avoiding the effect or reasoning of our opinion reversing the previous judgment, from the opening to the close of the case continuously sought to introduce in evidence this agreement in writing or oral reference thereto. There is a single cryptic reference somewhere in the record from which it may be inferred that defendant may have intended to testify that the written agreement actually referred to the note in suit. This was after the written agreement had been, as I view it, properly and repeatedly excluded. There is, near the close of the entire case, also an answer by the defendant (which was stricken out) to a question asking what plaintiffs’ assignor’s counsel said to the defendant at the time the agreement was surrendered for destruction: “ He [plaintiffs’ assignor’s counsel] said ' the note will be due at the time we have promised and we will stick to it. ’ ” By this ingenious version of the occurrence at the time of the surrender it is manifestly intended to rescue the alleged collateral agreement from the oblivion to which it was consigned by its physical destruction.
Leaving aside the questions of law which I have suggested, it may be true that upon collating and marshalling the various isolated questions, arguments and colloquy presented or participated in respectively by defendants’ counsel, the materiality of this single question may be sustained as tending to support the claim that the note was altered when the blank left in it by defendants was filled in by plaintiffs’ assignor so as to render it due on a date certain (quite in harmony with the text of the note). To reverse a *697judgment on a point so obscure and so insufficiently presented below seems to me to be unwarranted. In my opinion, therefore, the judgment should be affirmed.
Judgment reversed.