Hunter v. Blodget

106 N.Y.S. 48 | N.Y. App. Div. | 1907

Miller, J.:

The plaintiff and defendant were architects. Both were engaged in figuring upon and obtaining work for a firm of interior decorar tors. Plaintiff claims that the defendant agreed to.give him ten per cent of the gross amount of a certain contract then under consideration if he, the plaintiff, would not figure .on it, and he asserts that the defendant said that he, the defendant, received as a commission twenty per cent of the gross amount of the contract, wji.ich he would divide with the plaintiff. The gross amount- of the contract in question was $15,135. Had the-plaintiff obtained the work he would have received five per cent of that amount, or $756.75, but he claims that in consideration of his doing nothing at. all the defendant agreed to give him twice that amount, or $1,513.50., and the judgment appealed from awards him the latter sum," The defendant’s version of the- transaction was that he was to- give the plaintiff ten per cent of the net profit made hy the firm taking the contract, and the defendant says that he informed the plaintiff that his, the defendant’s,- commission was twenty per cent of such net profit. The court excluded evidence offered by.the defendant - to show the terms, of the defendant’s employment hy the firm of contractors and the exception to said ruling requires a reversal' of the judgment. It does not seem necessary to discuss the. proposition Jhat such evidence bore directly upon the- issue to be decided by the-jury. It is not' likely that the. defendant .agreed to give mpre than he was to'receive. The issue between the parties was whether the agreement was'to pay ten per cent of' the gross amount ,of the contract.or ten per cent, of the net profits, and any circumstances. bearing upon the probability or improbability of either version- of the transaction was relevant. (Ostrander v. Snyder, 73 Hun, 378, and cases cited on p. 382; affd., 148 N. Y. 757.)

The judgment and order must be reversed.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.'

Judgment and order reversed and new trial granted, costs to abide the -event.