By the Court, Crockett, J.: A jury was called to try the issues in the cause; one of which was, whether the plaintiff was the holder and owner of the promissory notes sued upon. At the trial certain special issues were submitted to the jury by consent, with instructions to find a special verdict on these issues.
The special issues so submitted did not include the issue made 63 by the pleadings as to whether the plaintiff was the holder and owner of the notes; and the verdict responded only to the special issues submitted, there being no general verdict. Thereupon the defendant moved for judgment on the verdict, and the motion having been granted, a judgment was entered for the defendant, from which the plaintiff appeals.
If it be assumed that the plaintiff was the holder and owner of the notes, the special facts found by the jury did not constitute a defense to the action, the property having been conveyed to Schumacher only by way of security, and not in payment, and that portion of it conveyed by the latter to Rosenfeld having also been conveyed in the same way. But the issue as to the plaintiff’s ownership of the notes was not determined by the verdict.
This material issue of fact raised by the pleadings has not been decided, and until it has been determined the case is not in a condition for judgment. There has been simply a mistrial, and until the issues of fact are decided no final judgment can be entered. (Chamberlain v. Dempsey, 14 Abb. Pr. R. 241; Griffin v. Cranston, 5 Bosw. 658; Kintz v. McNeal, 1 Denio, 436; Eisemann v. Swan, 6 Bosw. 668; Manning v. Monaghan, 23 N. Y. 539.) Judgment reversed and cause remanded.
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