Gregor v. McKee — 18 Misc. 613

Majority

p. 613

Charles R. Gregor et al., Respondents, v. John McKee et al., Appellants.

(City Court of New York, General Term,

December, 1896.)

Headnote

1. Appeal —When evidence not reviewable.

Where the record does not-contain a statement that the case contains all the evidence and there is no appeal from an order denying a motion for a new trial, the General Term will not review the evidence.

8. Same — Failure to move for dismissal or direction of verdict.

A failure to move for a dismissal of the complaint or for the direction of a verdict is a concession that the case is properly one for the jury.

3. Brokers — Evidence.

In an action for broker’s commissions, testimony as to" the payment of commissions to another broker for the sale of the same property to another purchaser is immaterial and inadmissible.

Appeal from a judgment entered upon a verdict in favor of the plaintiffs.

George W. McAdam, for appellants,

Solomon Kohn, for respondents.

In this case no application was made to dismiss the complaint or to direct a verdict for the defendants.

The record does not contain a statement that the case contains all the evidence adduced on the trial, and there being no appeal from the order denying the motion for a new trial,.this court will not review the evidence. .

Defendants’ failure to move for a dismissal of the complaint, or for the direction of a verdict in their behalf, is a concession on their part that the case Was properly one for the jury, and having taken their chance with the jury they cannot now he heard to complain of the verdict.

Upon the record before us there was a conflict of evidence and the charge of the court was full, clear and gave explicit instructions to the jury, for their guidance in weighing the evidence and carefully protected the rights of the defendants, and the determination of the jury will not be disturbed. .

p. 614

The exceptions taken during the trial relate* to the exclusion of testimony as to the payment of commissions of one Weyer, a broker, who was instrumental in having the property in question sold to one Mr. Frank.

' This evidence is clearly inadmissible.

The right of the plaintiffs to commissions is in no way dependent on the fact that commissions had been paid to another broker for a sale to another purchaser.

The right of commissions on the part of the agent Weyer, for. a sale to Frank, was not a matter in controversy.

The question at issue was, whether the plaintiffs were entitled to' commissions for a salé to a different purchaser and evidence as to the one question had absolutely no bearing upon the other.

. The conversation between the defendant McKee and the agent Weyer, in the absence of the plaintiffs, was clearly incompetent.

The question as to whether the defendants closed the sale with any person prior to seeing Mr. Gregor on Saturday, April "22, called for a conclusion and was properly excluded.

The facts on which the conclusion was based were testified to.

Defendant stated that he informed the plaintiffs, and this the latter positively denied.

The jury had the issue thus, clearly presented to it for its determination.

The judgment, appealed from should be affirmed, with costs!

Van Wyok, Oh. J., concurs.

Judgment affirmed, with costs.