
    ESSEX SASH AND DOOR COMPANY, PLAINTIFF-RESPONDENT, v. ISAAC L. GORDON, DEFENDANT-APPELLANT.
    Argued May 6, 1925
    Decided May 19, 1925.
    Negotiable Instruments — Alleged Conditional Delivery — Judgment for Defendant -by Jury Set Aside by Trial Court, and Judgment for Full Amount and Interest Awarded Plaintiffs— Fact That There was Evidence Regarding Conditional Delivery Made it a Jury Question, and Venire De Novo Will be Awarded.
    On appeal from the District Court.
    Before Justices Parker, Minturn and Black.
    Eor the appellant, Leber & Rubaclc.
    
    Eor the respondent, Samuel M. Hollander.
    
   Per Curiam.

This suit was brought in the Eirst District Court of Newark to recover $300, the amount of a promissory note. The note, is dated August 11th, 1923, payable in sixty days. The suit is against the maker of the note, the defendant, Isaac L. Gordon. The trial resulted in a verdict of the jury in favor of the defendant. Upon an application to the trial court, the judge set aside the verdict of the jury and directed a judgment to be entered in favor of the plaintiff for the full amount of the note, with interest, amounting to $328.50. This judgment was entered by the court in favor of the plaintiff, notwithstanding the verdict of the jury was in favor of the defendant. The defendant appeals and urges this action of the trial court as error. The principal defense set up by the defendant was the conditional delivery of the note sued on. This, as between the immediate parties to the note, under the Negotiable instruments act (3 Qomp. Stai. of N. J., p. 3737, §16), may be shown as a defense. There is such testimony in the record — first, by the defendant (at pp. 34, 35) : “Q. Have yon stated how he will back you? A. He will give me back the notes or give me the amount.” “Q. Did he say that? A. Yes, sir.” “Q. Was it on that occasion when you delivered these notes? A. Yes.” So, to the same effect, is the testimony of a witness Bebecca Gordon (at pp. 48, 49). True, this testimony was controverted at the trial on rebuttal, but that raised an issue of fact for the jury; hence, it was error for the trial court to enter a judgment for the plaintiff, notwithstanding the verdict of the jury in favor of the defendant.

The judgment is reversed and a venire de novo awarded.  