111 N.Y.S. 529 | N.Y. App. Term. | 1908
The facts in this case were stated on a former appeal in 56 Misc. Rep. 477, 107 N. Y. Supp. 142. Assuming now, as seems to have been assumed at the trial, that the alleged contract of employment was in force at the time of the execution of the contract between the defendant and B. Altman & Co., the case is barren of evidence to support the claim of the plaintiff to commissions on the ground that it was through his efforts and influence that the defendant obtained the orders for lighting fixtures. Testifying that he submitted sketches to one Kellar for Mr. Altman, which were returned because they were not liked, and that he never took any sketches there thereafter, his further conversations with ICellar were of no effect, and affected nothing; for Kellar’s only connection with the fixtures was, as testified to by one of his employers, “to get names of manufacturers, get ready, prepare for us to send for manufacturers of the gas fixtures, and make out list. He was to submit the designs to us.” He was but a medium, and apparently used only for transmission. Quite significant is the testimony of one of the members of the firm of B. Altman & Co. that he never had any conversation with the plaintiff concerning the contracts prior to their execution, and the other member was not called to speak for the plaintiff and in his behalf. The most that appears is that he may have brought the name of the defendant to the attention of the firm of B. Altman & Co.; but there is no evidence that contracts between that firm and the defendant were the result of his efforts and influence.
The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.