This action cannot be maintained in view of the decision of this court, in Allerton v. Belden (49 N. Y., 373), which was not reported when this case was decided at Special Term. The defence of payment was perfectly available to the plaintiff in an action upon the note, and no transfer could prejudice it. The plaintiff, under the provisions of the Eevised Statutes, can perpetuate the testimony of witnesses, in anticipation of a suit on the note, and no special circumstances exist, as in the case of McHenry v. Hazard (45 N. Y., 580), which authorize the court to entertain an action for its cancellation and surrender.

*535 The judgment of the General Term affirming the order of the Special Term should be reversed and judgment for the defendant given on the demurrer, with costs.

All concur; Miller, J., not sitting.

Judgment accordingly.