Third Department, July, 1913. [Vol. 158. jury was permitted to guess and speculate on every essential element in the case. The learned trial court erred in refusing to grant defendant's motion to set aside the verdict rendered. The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event. All concurred, KRUSE, P. J., and ROBSON, J., in result only, upon the last ground stated in the opinion. Judgment and order reversed and new trial granted, with costs to appellant to abide event. ALVIN W. KNAPP, Respondent, v. HENREK P. SKAARUP, Appellant. Third Department, July 8, 1913. Bills and notes-action on note-evidence raising question for jury. In an action upon a note given by the defendant to one J., as payee, for the purchase of J.'s interest in a vulcanizing plant, which the plaintiff had sold to M. and J., taking a chattel mortgage which he still held for a part of the purchase price, the complaint alleged that J. indorsed the note for value and before maturity sold and delivered it to the plaintiff. The answer denied upon information and belief the allegations of the complaint and alleged that the note was given for the purchase by the defendant of J.'s one-half interest in the plant upon the sole consideration and condition that such plant should at once be delivered to the defendant and that such delivery had been refused. Evidence examined, and held, to present a question of fact for the jury as to whether the plant could be moved to the plaintiff's shop, and that the direction of a verdict in the plaintiff's favor was error. APPEAL by the defendant, Henrek P. Skaarup, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of April, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 16th day of April, 1913, denying the defendant's motion for a new trial made upon the minutes. John F. Murray and William H. Murray, for the appellant. Cornelius Hannan, for the respondent. App. Div.] Third Department, July, 1913. The note in suit, dated January 12, 1912, was given by the defendant to one Johnson, as payee, for the purchase of Johnson's one-half interest in a vulcanizing plant, consisting of two vulcanizing machines, an engine, boiler, shafting, tools and attachments, which the plaintiff the previous December had sold to Mott & Johnson, taking a chattel mortgage for part of the purchase price, which mortgage plaintiff still held. The complaint alleged that said Johnson indorsed the note and for value, and before maturity sold and delivered it to the plaintiff, who still remained the owner and holder thereof. The answer denied knowledge or information sufficient to form a belief as to these allegations of the complaint, and alleged that the note was given for the purchase by defendant of Johnson's one-half interest in the vulcanizing plant upon the sole consideration and condition that such plant should at once be delivered to the defendant, and that such delivery had been refused. At the close of the trial the defendant requested that specific issues presented by the pleadings and evidence be submitted to the jury, which request the court denied, and directed a verdict for the plaintiff for the amount of the note. Thereupon, as the order appealed from recites, the defendant moved to set aside the verdict and for a new trial upon all the grounds specified in section 999 of the Code of Civil Procedure, which motion the court entertained and denied. This appeal has been taken from such order of denial and from the judgment entered upon the directed verdict, and the question before us upon this appeal is whether the evidence presented a question of fact upon any such issues which entitled defendant to the submission thereof to the determination of the jury. Bearing upon the decision of this question it will be necessary to briefly refer to a portion of the evidence. Therefrom it appears that during the period of about one month, which had elapsed between the time of the sale of the vulcanizing plant by plaintiff to Mott & Johnson and the purchase of Johnson's interest therein by defendant, the plant had remained in plaintiff's building upon the payment of a monthly rental, and had been there unsuccessfully operated by Mott & Johnson; that Mott proposed to defendant, who was conducting a shoe Third Department, July, 1913. [Vol. 158. maker's shop farther up the street, that defendant should buy Johnson's interest in the plant, and that Mott and defendant should combine the two lines of business and together operate them in defendant's place of business. Concerning this matter the testimony of the defendant, who is apparently of foreign extraction and not entirely familiar with the English language, was as follows: "Mr. Mott came up to me and asked me to buy out this Johnson on the ground that he couldn't get along down there, couldn't do business in that place, and put it together with mine and run it in company I said if Johnson was ready to sell I'd buy it off him if he wait for part of the money. He came up with Johnson and Johnson agreed to sell for $125, $25 cash and pay the other later I went down to see Mr. Knapp [plaintiff], and said to Knapp, 'You know that I bought Johnson out?' He said, 'I heard about it.' I said, 'You know that they are coming to be moved.' 'Yes,' he said, 'Mott told me so.' Soon thereafter the plaintiff took the defendant, Mott and Johnson to the office of his attorney where the note was executed, and a bill of sale was given by Johnson to the defendant, Mott consenting thereto, containing a clause by which the defendant assumed and agreed to pay the whole amount of the mortgage of $225 as part purchase price of the property. Regarding this transaction defendant testified: "I bought it with $225 mortgage and to pay $10 a month, never thinking but as I could move the stuff and do business. We went up there to draw the papers and pay Johnson $25. The lawyer asked me how I pay the rest. I said it was to be paid the first of June. He said, 'Don't you think we better draw a note for it?' and I said 'all right, draw the note and I sign it.' He drew the note, and I signed it." Defendant further testified regarding moving the vulcanizing plant to defendant's shop: "When Mott came down there and said, we are going to move the stuff, he [plaintiff] said all right, and helped him to take it down. After it was down he said, 'I don't want you to move the stuff, I want a hundred dollars before you can move it.' The stuff was dismantled in Knapp's place, and while it was being dismantled he was present about the place. Then Mott came up to me and I said if we can't have it I can do nothing with it App. Div.] Third Department, July, 1913. down in that place. Johnson came up, and I said you ought to get me my note back, I can't accept the stuff in that way. He said, 'I ain't got the note. Knapp has got the note."" Plaintiff testified that he bought the note of Johnson about April for twenty-five dollars, and that he said to Johnson in connection with purchasing the note, "I don't know about that, whether or not that note is good, but I am willing to take a chance, or that in words or substance." While both the plaintiff and the attorney denied that it was agreed that defendant might move the vulcanizing plant to his shop at once, and both testified that the agreement was that the plant should not be moved until defendant had paid $100, yet the defendant was entitled to have the jury pass upon that issue, as clearly the plaintiff, who was present when the bill of sale and note were given, and took part in the transaction, had full knowledge of the consideration of the note and the condition under which it was given, and was bound by them, and it was a material issue whether such consideration had failed. Neither Johnson nor Mott was called as a witness, the former being in Dakota, and the whereabouts of the latter unknown. The suggestion appears in the opinion of the trial judge that even had the agreement existed that defendant was to have immediate possession of the vulcanizing plant, yet that the plaintiff was entitled to a directed verdict, as plaintiff had the right to retain possession of the property under the clause in the mortgage allowing him to take possession at any time when he might deem himself unsafe. However, plaintiff based his refusal to allow defendant to remove the plant solely upon the non-payment of this $100, as defendant testified and plaintiff did not deny, and had plaintiff based such refusal upon the danger clause in the mortgage, the serious question would have arisen as to his right to do that in case he had agreed that defendant might have immediate possession and as a condition and in consideration thereof defendant had purchased Johnson's one-half interest. It appears that plaintiff foreclosed the chattel mortgage and that he purchased the property at the sale, but it does not appear, and is perhaps immaterial, Third Department, July, 1913. [Vol. 158. whether the mortgage was fully paid or whether a deficiency exists with the payment of which it may be sought to charge the defendant. We think the direction of a verdict was error and that the judgment and order must be reversed and a new trial granted, with costs in all the courts to appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs in all courts to appellant to abide event. HELEN E. HOWATT, Respondent, v. THOMAS HOWATT, Appellant, and MARTHA A. BAEDER, Corespondent, Appellant. Third Department, July 8, 1913. Husband and wife - divorce — appeal from final judgment - when interlocutory judgment not reviewable - delay in moving for final judgment - waiver of stay by service of notice of trial — right of corespondent to intervene after entry of interlocutory judgment. In an action for divorce on statutory grounds issue was joined January 30, 1912. Thereafter an order was granted requiring the defendant to pay alimony from April first. May sixth, defendant failing to appear after notice of trial duly served, proof of adultery was made, findings signed by the trial judge and an interlocutory judgment entered on June first. July twenty-third the defendant obtained an order to show cause why the interlocutory judgment should not be vacated, in which a stay was provided. On September fourteenth, at which time a hearing was had upon the order to show cause, an order was made opening the default and vacating the judgment upon condition that the plaintiff in twenty days pay the back alimony and costs of the motion. It was also provided that in case of failure to pay such amounts the motion should be deemed denied. This order was entered October third and the next day a copy served upon the defendant, at which time the plaintiff served a notice of trial for the twenty-first day of October, at which time the plaintiff not appearing, the case was stricken from the calendar. Thereafter the plaintiff upon a motion to restore the case to the calendar, which was denied, stated in his affidavit that the defendant had not complied with the condition of the order opening the default. October eighteenth the corespondent served a notice of appearance, demanding a copy of the complaint which was served upon her October twenty-first, and her answer was served upon the plaintiff's attorney |