p. 538Samuel Abrams, Appellant, v. Alexander Braunstein, Respondent.Headnote
Hearsay evidence—statements made by a purchaser of land to á third person bea/ring on the right of an agent to commissions on the sale thereof.In an action to recover commissions, alleged to have been earned by the plaintiff in effecting a sale of the defendant’s drug store, in which the principal issues are whether the defendant employed the plaintiff and whether the plaintiff was the efficient' cause of the sale, evidence given by a,mortgagee of the premises, who was called as a witness by the defendant, to the effect that he had a conversation with the purchaser in the absence of the plaintiff, during which the purchaser -told him that he contemplated opening a store upon the street in which the defendant’s store was located, and that he had been to see ■ the defendant, and that the defendant, in the course of the conversation, said that if he was anxious to have a store upon that street he should buy his, which statements tended to corroborate testimony of the defendant that the purchaser was not introduced to him by the plaintiff, is incompetent as hearsay.
Appeal by the plaintiff, Samuel Abrams, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, third district, rendered on the 11th day of January, 1901 j dismissing the complaint upon the merits.
Charles J. Belfer, for the appellant.
Francis A. McCloskey, for the respondent.
This action was brought by the plaintiff to recover commissions alleged to have been earned by him as defendants broker in effecting the sale of his drug store in the borough’of Brooklyn. The principal points litigated were whether the defendant employed the plaintiff, and whether' the plaintiff was the efficient cause of the salé; The court found in favor of the defendant upon conflicting testimony, and were it not for the introduction of improper evidence we should not be inclined to disturb its decision.
Leon Lourie, the holder of a mortgage upon the premises, was called as a witness by the defendant, and was permitted to testify to a conversation with the purchaser a short time before the sale, which tended to corroborate the evidence of the defendant that the pur
p. 539chaser was not introduced by the plaintiff, and that the sale was made by his own efforts and not through the instrumentality of the plaintiff. He testified that during “ the -first part of October Mr. Meyer came over to my residence and told me that he would like to speak to me about business, and stated that he was going to buy th j store in Grand street, as I was the owner of it as well as Mr. Braunstein", who was known to Mr. Meyer; I have seen Mr. Braunstein in my residence the night previous, and I was greatly surprised to hear it, and asked him if he saw Mr. Braunstein, and he said, £ yes, I was going to open a new store and looking for a store upon Grand street, and I came over to Mr. Braunstein and we had a talk together, and I understood that at present we two would not do much business in the immediate neighborhood.’ Q. This is what Mr. Meyer said? Same objection, ruling and exception. A. Yes, sir; Mr. Meyer told me, £ anyway I would, he said, Hot like to be a direct competitor of Mr. Braunstein, so in course of conversation he said, well, if you are very anxious to have a store upon Grand street, buy mine.’ ”
This conversation was in the absence of the plaintiff, and under well-settled principles it was clearly hearsay and incompetent. It was not part of the res gestae, but a mere declaration of statements made by a third person, with which the plaintiff was not chargeable. We are not able to say that this evidence did not affect the result. For this error we feel compelled to direct a reversal of the judgment and a new trial, costs to abide the event.
Goodrich, P. J., Woodward, Hirschberg and Jenks, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide, the event.