80 A.D. 161 | N.Y. App. Div. | 1903
The action is brought to recover a commission of one per cent, aggregating the sum of $1,250, for procuring a loan of $125,000 upon the defendant’s bond and mortgage upon real estate owned by him. On the 14th day of May, 1902, the defendant obtained a loan from the Brooklyn Savings Bank of $125,000 at four and one-half per cent. It is upon this transaction that plaintiff claims a commission. At the close of the plaintiff’s case counsel for the defendant moved for a dismissal of the complaint on the ground that the plaintiff failed to show that he was authorized to procure the loan. The motion was denied and counsel' for the defendant excepted. The motion was not renewed at the close of the evidence, nor did the defendant request the court to direct a verdict in his favor. There was no exception to the charge, and the jury rendered a verdict in favor of the plaintiff for the full amount of his claim. The appellant, by failing to move for a dismissal of the complaint or direction of a verdict at the close of the evidence, waived his exception to the denial of his motion for a nonsuit and conceded that there was a question of fact to be determined by the jury. (Hopkins v. Clark, 158 N. Y. 299.) One of the grounds of the motion for a new trial was, however, that the verdict is against the weight of the evidence, and since, under the rule in McDonald v. Met. St. Ry. Co. (167 N. Y. 66), if there was any conflict in the evidence the court could not direct a verdict for the defendant upon the theory than an adverse verdict would be set aside as against the weight of the evidence, it is clear that appellant, by conceding that there was a question of fact, did not waive his right to contend that the verdict if rendered in favor of the plaintiff would be against the weight of the evidence. The verdict of the jury, if not against the evidence and wholly unsupported thereby, is clearly against the weight of the evidence. The evidence on the part of the plaintiff showed that he was employed by the defendant to procure a loan of $150,000 at four per cent; that through another broker with whom he was associated he applied to the Brooklyn Savings Bank where the application was considered, and declined with the suggestion that the bank would consider an application for a loan on the same property of $125,000 at four and a half per cent; that this information was communicated to the defendant, and at his
W e have not overlooked the fact that the plaintiff testified that the defendant at the time of the original employment said in substance that if the plaintiff could not procure a loan for $150,000 to get $140,000 or $135,000 or even less and he would make up the difference necessary to pay off the mortgage. This testimony is contradicted by the testimony of the defendant and is in conflict with the testimony of Paretzwelder, a broker who accompanied the plaintiff at the time of his second interview with the defendant, and with other testimony given by the plaintiff himself, and the verdict cannot be sustained upon it.
It follows, therefore, that the judgment and order should be reversed upon the ground that the verdict is against the weight of the evidence and a new trial granted, with costs to appellant to abide the event.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment and order reversed, new trial granted, costs to appellant to abide event.