Opinion
March 3, 1952.
On November 3, 1948, respondent delivered to defendant Cioffi her check for $3,450, allegedly on condition that a Cadillac car be delivered by Cioffi to respondent by midnight of that day. Respondent has never received the car. Cioffi indorsed the check and delivered it to plaintiff on November 3, 1948. Plaintiff claims that the check was given to it on account of the purchase price of a Cadillac car purchased by Cioffi for one Castore on October 29, 1948; that on November 4, 1948, Cioffi paid in cash the balance of the purchase price for the Castore car, and that Cioffi's agent drove the automobile from plaintiff's premises on that day. In this action on the $3,450 check, respondent claims that plaintiff is not a holder in due course because (1) it took with knowledge of the condition on which respondent delivered the check to Cioffi; and (2) plaintiff did not part with value for the check. The jury returned a non-unanimous verdict in favor of respondent, and plaintiff appeals from the judgment entered thereon. Judgment reversed on the law and the facts and new trial granted, with costs to appellant to abide the event. In our opinion, not only is the verdict against the weight of the evidence but there should be a new trial in the interests of justice. Nolan, P.J., Carswell, Johnston, Wenzel and Schmidt, JJ., concur.