86 N.Y.S. 802 | N.Y. App. Term. | 1904
The plaintiffs, in their complaint, stated their cause of action in the alternative; the first being for an agreed compensation of brokerage of i per cent., and the second cause of action being based upon a special promise to pay for services rendered. The first cause of action was waived on the trial, and the second, only, presented to the jury.
On the trial the plaintiffs contended that they were employed by the • defendants to procure for them the premises Nos. 68 and 70 Avenue D, in the borough of Manhattan, New York City, for which the defendants agreed to pay the plaintiffs the sum of $5°° as commission in securing the purchase of the property, but this was denied by the defendants. The evidence is very .conflicting, but it is clear that the plaintiffs were employed and consulted in some capacity by the defendants; and we think, after a careful perusal of the whole evidence, that the weight of it is in favor of the plaintiffs’ contention that they acted for the defendants, although they may also have acted in some capacity for Jacob Margovitz, the owner of the property; and we think the testimony clearly shows that this was well known to the defendants at the time the plaintiffs claim that the promise to pay the $500 in lieu of commissions was made, as Margovitz had frequently refused to sell unless he was relieved from the payment of any commissions.
The questions at issue were clearly put to the jury by the trial court, and the jury found in favor of the plaintiffs; and it is wholly unnecessary to cite authorities to the point that, where a jury renders a verdict upon conflicting evidence, it will not be reversed upon appeal unless there is such a clear preponderance that the court is convinced that a new trial should be had. No such preponderance, in our judgment, appears in this case.
The contention of the appellants that the alleged agreement to pay was nudum pactum is not well taken. As before pointed out, the jury have found that the defendants undertook and promised to pay $500 as commissions in order to obtain the property at the price that Margovitz was willing to sell it, provided he was relieved from the commissions, and he was not willing to sell it unless he was so ¿relieved. There was no such variance between the pleadings and the proof as would warrant us in reversing the judgment on that ground, for the record clearly shows that throughout the case the plaintiffs were relying upon the defendants’ promise to pay them the $500 in lieu of commissions; the consideration therefor being the lower price for which they secured the property.
The court did not err in sustaining the objection to the question, “Did you tell Mr. Cohen that the commissions were to be paid by Feder and Levine, according to your testimony?” for the question had been substantially asked in the same form only aa short time before, and allowed.
Judgment affirmed, with costs. All concur.
