Chambers v. Goldklang

31 Misc. 247 | N.Y. App. Term. | 1900

Giegeeich, J.

The action is to recover broker’s commissions for placing a loan. The answer is a general denial.

The plaintiff testified that at his office, in the spring of 1897, in April or May, an agreement was made between the parties litigant by the terms of which he was to procure a loan of $15,000 upon the defendant’s real property, and when procured the latter was to pay him a commission of one per cent, upon the amount of such loan. The defendant denied that he ever met the plaintiff at the latter’s office, and that he made such an agreement. As to several other material matters, there was a conflict of testimony. At the close of the entire case the plaintiff moved for a direction of a verdict by the jury in his favor, which motion was granted, and the defendant took an.exception.

As the defendant did not when the proofs were all in move for a nonsuit, or-do any other act from which a waiver of the right to go to the jury may he implied, the exception so noted by him is sufficient to require a reversal of the judgment if there was any evidence tending to establish any material fact in-his favor, which if found by the jury might have changed the result,' and it was not necessary for the defendant, in order to preserve such right, to go further and request that any fact be submitted to the jury. Haines v. N. Y. C. & H. R. R. R. Co., 145 N. Y. 235, 237 ; Baylies Tr. Pr. (2d ed.) 323. As we have noted, there was a conflict of testimony upon material questions of fact, which should have been submitted to the jury for their determination, and, under these circumstances, the direction of a verdict was not justified. Schillinger v. McGarry, 25 Misc. Rep. 745, 749.

The defendant’s contention that during the course of the trial, the trial justice admitted testimony against his objection and exception, and upon the plaintiff’s objection excluded testimony of the same character and equal relevancy when offered by the defendant, seems to be well founded, and this likewise is good ground for reversal. Sentenne v. Kelly, 59 Hun, 512, 517. It results from these views that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and O’Gorman, J., concur. K

Judgment reversed and new trial ordered, with costs to appellant to abide event.