¶1This case was considered by a former Appellate Term (28 Misc. Rep. 134), and hence it is only necessary to set forth such facts as were not before the court upon the previous trial.
¶2Upon the former appeal the plaintiff’s contention that his indorsement of the note was made in consequence of a contemporaneous oral agreement of Geraty & Ball to execute'the chattel mortgage in suit, was held not to be supported by the evidence. The plaintiff, however, upon the trial which is the present subject of review, introduced evidence tending to show that such agreement was made. This version, though, was contradicted by the defendants, and the case was submitted to the jury upon the theory that the plaintiff might prevail in the action, notwithstanding failure to prove the existence of his mortgage by virtue of an agreement, if the Connery mortgage should be found to have been given without valuable consideration. This submission of the issues was quite at variance with the rule laid down upon the former appeal (28 Misc. Rep. 138), and the error, presented as it is by proper exception, must lead to a reversal of the judgment.
¶3For these reasons the judgment must he reversed and a new trial ordered, with costs to the appellants to abide the event.
¶4Present: Beekman, P. J., Giegerich and O’Gorman, JJ.
¶5Judgment reversed and new trial ordered, with costs to appellants to abide event.