To vacate an order allowing an appeal from a judgment for defendant rendered by a justice.

Granted December 4, 1896, with costs.

Plaintiff, residing in California, through his attorney sued upon a promissory note. Upon the trial defendant was allowed to add a notice to his plea that he would show a novation and gave testimony supporting such claim. Plaintiff had no notice or knowledge that such a defense would be set up and after judgment plaintiff’s attorney wrote notifying plaintiff of the defense and the result and asked for instructions.