I concur in the affirmance of' the order granting a new trial. The Court permitted the defendant Bicknell, against the plaintiff’s objection, to testify to a verbal agreement which constituted no defense to the action upon the note. As stated in the transcript, “ Counsel for the plaintiff at this point objected to the witness testifying to a parol contract subsequent to the note and varying the effect thereof. The objection was overruled, and plaintiff excepted.”
If the objection had been based upon the ground that evidence of the parol contract would be immaterial or irrelevant, I do not think that the ruling of the Court could be sustained. And it seems to me, that the ground stated is substantially to that effect; i. e., that such an agreement would not affect the *497plaintiff’s right to recover upon the note. And the second specification of error contained in the statement on motion for a new trial, is, thatt- the C )urt erred in admitting evidence of a subsequent parol contract to vary or change the effect of the note on which the action was brought.” That “ subsequent parol contract ” constituted the defendants’ sole defense to the action, and if that had not been admitted, the judgment of the Court below would doubtless have been for the plaintiff. The Court does not appear to have based its order granting the motion for a new trial upon this ground, but it is sufficient for the purpose of affirming the order, that the Court might have done so. It seems to me, that the overruling of plaintiff’s objection to the introduction of evidence of the parol agreement, testified to by defendant Bickne.il, constitutes “ error of law. occurring at the trial, and excepted to ” by plaintiff.
McKinstiíy, J., and Myiíick, J., concurred in the opinion of SlIAUPSTEIN, J.