Edel v. Hillenbrand — 107 N.Y.S. 30

Majority

p. 30

EDEL v. HILDENBRAND et al.

(Supreme Court, Appellate Term.

November 29, 1907.)

Headnote

1. Appeal—Instbuctions—Exceptions.

Where no exception was taken in the trial court to the charge, it cannot be reviewed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1516.]

2. Damages—Actions by Beokeb fob Compensation—'Vebdiot—Excessive.

Where, in ah action by a broker, under an alleged custom that a broker aiding another broker in a sale of real estate is entitled to one-half of the commissions, the undisputed evidence was that defendant brokers received as the entire commission only $500, a verdict for plaintiff for $475 was excessive, even if the custom contended for prevailed.

Appeal^ from Municipal Court, Borough of Manhattan, Tenth District.

p. 31

Action by Ernest U. Edel against E. Francis Hillenbrand and others. Judgment for plaintiff, and defendants appeal. Reversed, and a new trial ordered.

Argued before GIEDERSLEEVE, P. J., and EEVENTRITT and EREANGER, JJ.

Newton McGovern, for appellants.

John'Oscar Ball, for respondent.

Plaintiff, a real estate broker, claims $500 from defendants, who are copartners doing business as real estate brokers, as one-half of the commission received by the defendants on the sale of certain real estate. The plaintiff claims that he aided the defendants in the negotiations which resulted in the sale, and that under the custom of the trade he was entitled to one-half of the commission. The defendants deny the rendition by the plaintiff of any service, and claim that under the custom of the trade, where two brokers work jointly in a transaction which results in a sale, a division of the commission is usually made, but not necessarily in equal shares; the division being governed by the special circumstances attending the transaction. The issués were submitted to the jury in a charge to which no exception was taken; hence the alleged errors cannot be considered. The jury allowed plaintiff $475 damages. This amount is excessive, as the undisputed evidence is that defendants received as the entire commission only $500, and, even if the custom contended for by the plaintiff prevails, he is not entitled to more than one-half of that sum.

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