The plaintiff sues upon four notes, made by the defendants Gottfried and Druclcer, and payable to one Karl Hershon. The defendants showed by uncontradicted testimony that at the time the notes were made and delivered a petition in bankruptcy had been filed against them, and that for the purpose of effecting a settlement with their creditors they made and delivered to Hershon a series of notes aggregating the amount of $3,000, of which the notes in suit were part. Thereafter Hershon refused to carry out his promise to try to effect a settlement, and returned all the notes, except the four in suit, which he failed and refused to return.
This uncontradicted testimony showed that the title of Hershon was defective, and the.plaintiff could no longer rely on the presumption * that he .was a holder for value, and was bound to show this fact af*39firmatively. He testified that he received this noté from Hershon in payment of an antecedent debt. His testimony was not directly contradicted, but some doubt was cast upon its veracity by its inherent improbability, the vagueness of his testimony as to the antecedent debt, and especially by the testimony of one of the defendants’ clerks that plaintiff admitted to him that he knew that the defendants were in bankruptcy when he accepted the notes, that he was bringing the action only for Mr. Hershon’s sake, and that in case he loses this case he will “hold Mr. Hershon responsible for it anyhow.”
“Although the testimony given by the plaintiff as to the circumstances under which he obtained the note was uncontradicted, he was an interested witness, and his credibility was for the jury to determine.” Engle v. Hyman, 54 Misc. Rep. 251, 104 N. Y. Supp. 390, and cases there cited.
At the close of the case the defendants’ attorney asked the trial justice “to let the jury determine whether this man had knowledge of these proceedings or not,” and the justice said:
“I think not. I would like to send it to the jury, but X cannot.”
He then added:
“I am satisfied that this plaintiff was a party to this transaction. I am satisfied he knew about it, and I am not satisfied he paid the consideration he claims he did, and yet a verdict against him would not stand on the evidence.”
I have no doubt but that the learned trial justice was in error as to the weight that must be given to uncontradicted evidence of an interested party, where that evidence is reasonably subject to disbelief, and his refusal to send the case to the jury is manifest error.
The respondent claims that, if this constituted error, it was cured by the subsequent request of both parties for the direction of a verdict. There is little doubt in my mind that, however ill-advised that request on the part of the defendants may have been, it was sufficient to authorize the trial justice to assume the functions of the jury and to decide the facts.
[1,2] We have, however, frequently held that, on appeals from the Municipal Court, we may reverse a finding of fact of the jury, where it clearly appears that the verdict of the jury is the result of mistake; and in accordance with the rule that we should affirm or reverse according to the justice of the case, without regard to technical errors or defects, I believe that we have the same power to reverse a finding of the trial justice, even where both parties join - in the request for a direction, in any instance where it clearly appears that the trial justice proceeded upon an erroneous theory.
[3] Where the record shows that the trial justice, after seeing and hearing an interested party and weighing his testimony, did not believe him, but found in his favor because he believed he was bound to do so as long as the testimony was uncontradicted, an affirmance of the judgment based on an erroneous and unjust theory would be manifestly not “according to the justice of the case.”
*40Judgment should be reversed,, and a new trial granted, with costs tti appellant to abide the event.
SEABURY, J., concurs.