It seems to us that the learned , trial court erred in the disposition made of this; case.. There seems to be.no. doubt, from the evidence given on the .part of plaintiff herself that "the consideration for this bond and mortgage,.if any,, was an indebtedness by defendant to the plaintiff’s husband.. The defendant, by his answer, denied that any such indebtedness ever existed,,alleging that the title to the. One Hundred'and Sixth, street lot Was taken and held by him merely as an accommodation for the plaintiff’s, husband; that the money, paid for. the lot was npt borrowed by defendant from jilaintiff’s husband, but was. paid by the. latter directly to. the owner, as.the purchase price of .the property. This defense he attempted to prove on the trial by himself, and. the witness..Brown. Some of the evidence .offered for this purpose was competent .and should- -have been received;. and. when so- received" it, would .have been a question for the jury whether there was an indebtedness, by defendant to plaintiff’s husband which constituted a consideration for the bond and mortgage. It is true,.that,, even if defendant correctly alleged in his answer, the 'original transaction between" himself and the plaintiff’s- husband, it- would still have been competent-for him, after the death, of plaintiff’s- husband, and with the assent of the persons then .interested in the- .property, to retain title to the property, and give the bond and mortgage, for .the money advanced by plaintiff’s husband,, for the purchase price thereof. . The defendant, however, did not concede that: he gave the bond and mortgage, under siich circumstances, but.testified that he gave them without any consideration,, and .solely for plaintiff’s. accommodation, and it was a question .for the- jury what .the; circumstances were under which the bond, and mortgage were given. It could not be determined .by .the court.... Some of., the evidence offered was objection*269able, and should not have been received. Some of it, however, was clearly competent and proper, and we think that under the rulings of the court, fairly considered, the defendant was denied an opportunity to give competent and material evidence in support of his defense, and that such evidence having been received, the questions raised would have been for the jury, and not for the court.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment reversed and a new trial ordered, with costs to appellant to abide event.