On appeal from the Essex County Circuit Court.
For the plaintiff-appellant, Samuel Press.
For the defendant-respondent, Pellegrino J. Pellecchia, Jr. (Frank Cossoline, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. The plaintiff below appeals from a judgment entered upon a verdict against him and in favor of the defendant, with costs, in the Circuit Court of Essex county, and contends that the trial court's action in directing the verdict against him was erroneous.
Plaintiff sued defendant for $1,500 loaned to defendant over a period of time and for which she, the defendant, gave plaintiff the following paper-writing:
"Received from Mr. Zubito Sardino the full sum of Fifteen Hundred ($1,500.00) Dollars, this day loaned to me by him on account of the Sum of Three Thousand ($3,000.00)
Dollars, which is to be advanced by him to me as a mortgage on my property at 361 South Ninth Street, Newark, N.J. The balance of the sum of Fifteen Hundred ($1,500.00) Dollars is to be paid me when the sum is to be advanced towards the paying off of mortgage held by one D'Onofrio, in the amount found due him by the Court of Chancery of New Jersey.
The complaint further alleges that the defendant did not require the further sum of $1,500 from the plaintiff for the purpose of paying off the mortgage held by D'Onofrio; that defendant refused to deliver to the plaintiff a bond and mortgage as agreed by her, whereupon demand was made for the return of the $1,500 loaned to defendant and upon her refusal to pay, this suit to recover the same was started.
There is a second count which is in effect one for money had and received, demanding judgment against the defendant for $1,500 ...