I cannot agree with the conclusion arrived at by-Mr. Justice Patterson in this case. The court had no power at the close of the case to conform the affirmative allegations in the answer to the proof, for the reason that the evidence at the time it was offered, to which the allegations *737in the answer were made to conform, was objected to, and admitted under exception. Under these circumstances, the court- had no power to conform the pleadings to the proof, because the party whose objection had been overruled had a right to rely upon his exception, and the rights which such exception gave to him could not be taken away by the device of conforming the allegations of the pleadings to the proof offered, such exception having been well taken at the time the proof was offered. If any amendment to the pleadings was necessary, it should have been made prior to the introduction of the evidence if the evidence was objected to, and, for the reasons stated, it is apparent that such a motion could not be made, under such circumstances, at the close of the case.
There is another error which was committed during the progress of this trial, and which is fatal to the judgment. The allegation in the complaintis that the deposit of the bonds in question took place on or about the 10th of October, 1886, to secure an antecedent debt. This allegation is not denied in the answer. It is true that the answer sets up new matter, or an affirmative defense, which is inconsistent with this allegation in the complaint. But it is a well-settled rule of pleading that no proof can be admitted in support of new matter contained "in the answer which is inconsistent with an allegation in the complaint which is not denied; in other words, a party cannot be permitted, after admitting a fact, to offer evidence to controvert it. This rule is illustrated in the case of Fleischmann v. Stern, 90 N. Y. 110. In that case the action was brought upon a promissory note payable to the order of the defendant, and indorsed by him, and the complaint, after setting forth the note, alleged that it was indorsed to the plaintiff before maturity by thei defendant in payment of an indebtedness. The answer did not deny any of the allegations of the complaint, but alleged that the note was made for ac-! commodation, and,was indorsed to plaintiff upon a usurious agreement, and' demanded a dismissal of the complaint. Held, that the answer did not put-the averments of the complaint in issue; and as by section 522 of the Code' every material allegation of the complaint not controverted by the answer must, for the purposes of tl.eaction, be taken as true, the defendant was not at liberty to deny the facts constituting the cause of action stated in the complaint, or to prove any state of facts inconsistent therewith; and that the omission to deny was equivalent to a formal admission of the truth of the averments, and was conclusive as such. How, in the case at bar, the affirmative defense depends upon the fact of the deposit of these bonds with the defendants in February, 1882, whereas the admission in the pleadings is that they were deposited on or about the 1st of October, 1886. The evidence therefore was clearly incompetent, and, under the. pleadings as they existed during this trial, the defendants could not be permitted to show a different state of facts from that which was admitted by their failure to deny this allegation of the complaint. As far as this condition of the pleadings was concerned, there was no attempt at amendment. The motion to conform the pleadings to the proof related to the affirmative allegation in the answer only. I think there was fatal error, and that a new trial should be granted, with costs to appellant to abide event.