Kelly v. Brandt — 267 A.D. 104

Majority

p. 104

Bessie Kelly, Respondent, v. Mortimer Brandt et al., Copartners under the Name of Mortimer Brandt Galleries, Appellants.

First Department,

November 26, 1943.

p. 105

Edgar H. A. Chapman of counsel (Reed & Chapman, attorneys), for appellants.

Samuel W. Tannenbaum of counsel (Appel & Tannenbaum, attorneys), for respondent.

Although the complaint contained no cause of action for the reasonable value of the plaintiff’s services, the evidence of reasonable value was received without objection by the defendants and could, therefore, be submitted to the jury.

The amount of the verdict discloses that the jury rejected the plaintiff’s claim for one half of the commission received by the defendants and awarded an amount which, in the opinion of the jury, represented the reasonable value of her services in assisting the defendants to earn a commission of $12,000 less an expenditure of $500. The court excluded, however, evidence of other expenditures incurred by the defendants in concluding the transaction on which the commission was earned. This was error which requires a new trial. The defendants were entitled to establish all expenditures properly incurred in earning the commission since the jury were entitled to consider the amount remaining after such expenditures in determining the value to the defendants of the plaintiff’s services.

p. 106

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Townley, Unteemyee, Dobe and Cohn, JJ., concur; Callahan, J., concurs in result.

Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event.