34 N.Y.S. 501 | N.Y. Sup. Ct. | 1895
The defendant admitted at the trial that the double commissions amounted to $524.50. By the judgment record in the action of the plaintiff against Post, it appeared: That the plaintiff there, in his complaint, alleged that, pursuant to agreement, he procured the purchaser of the premises then owned by defendant, Post, at the stipulated compensation of double commissions, which amounted to that sum, “of which sum the defendant has paid the sum of $264.50, leaving still due and owing to plaintiff the sum of $260, which the plaintiff has demanded of defendant [Post], and which he has refused to pay”; and he demanded judgment for $260 and interest. That by the answer the defendant, Post, admitted that he was such owner of the premises; denied, upon information and belief, that double commissions amounted to $524.50; admitted that he had paid the plaintiff $264.50 thereon, and that he had refused to pay any more; and denied all allegations of the complaint not admitted or denied. That the plaintiff was nonsuited on the trial of that action, and judgment was finally perfected against the plaintiff for $234.82 costs. This judgment was assigned by Post to the defendant. The verdict directed for the plaintiff was produced by deduction from $524.50 and interest of the sums of $264.50 and $234.82. It appears that the plaintiff had occupied the premises as tenant, and that at the time he earned the commissions there was due from him $264.50 for rent. This was treated at the trial as having been applied as a payment upon his claim for such commissions. The defendant testified that in October, 1892, in an interview with the plaintiff, he presented a bill for the rent to the latter, who said he would accept it on account of the commissions, and that in making out his bill the plaintiff allowed the rent on the account, and that afterwards the defendant left with the plaintiff a receipted bill for it. The plaintiff testified that no receipt for the rent was given him by the defendant. He does not deny, by his ■evidence, that it was in fact applied upon his claim for commissions; and, by the evidence, it quite conclusively appears that it was treated by all the parties as having been so applied. Before the commencement of his action against Post, the plaintiff caused to be written, and sent by his attorney to the defendant, a letter addressed to him, in which the attorney stated that the plaintiff had placed in his hands, for collection, “claim for commissions on the sale of property, in which he alleges you were interested, amounting to $260,
It is urged on the part of the plaintiff that evidence which was offered to prove that the Post judgment was the result of fraud practiced by the defendant upon the plaintiff was erroneously, excluded. This charge is founded upon the letter of the defendant’s attorney in answer to that before mentioned. In that letter, of date 27th January, 1893, reference is made to the plaintiff’s letter of the day previous, and then is added that Mr. Bruff denied having made any arrangement to pay commissions in excess of $260, and that such sum was “paid by offsetting a claim which the owner of the property sold, to wit, Mr. Post, had against Mr. Rice for rent. Mr. Post is the real party for whom the building was sold, and he claims he paid all the commission which was due Mr. Rice, and all which Mr. Bruff agreed should be paid.” It is asserted on the part of the plaintiff that he was induced by the statements in that letter to bring the suit against Post The plaintiff’s counsel, in pursuing the subject on that basis, asked the defendant, as a witness, the question, “Is it not a fact that you and Willis owned this building together?” and he asked Post as a witness the following questions:
"Were you at any time during the year 1892 the owner of the building? Had you at that time anything more than the record title to the building? Were you the real party for whom it was sold? Did you ever claim any amount due you for rent from Mr. Rice for its occupancy? Did you retain counsel to defend the action of Rice against you, or pay anything for the defense of it to anybody? Was there any consideration for the assignment of the judgment to Bruff? Did you know who were the owners of the building?”
Objection following each of these questions was sustained, the evidence excluded, and exception taken.
While the business management of the property was conducted by the defendant, the legal title appears to have been in Post. The plaintiff, not only in his complaint in the action against Post, but in that in the present action, alleged that Mr. Post was the owner of the property. If the purpose was to prove that Bruff was beneficially interested in the title to the properly, it could not be proved by oral evidence. Nor was it important to prove whether or not Post personally claimed any amount of rent due him from the plaintiff. If, however, there was any basis to support the charge, as against Bruff, that the judgment was obtained by fraud, and there-
The judgment should be affirmed. All concur.