Pollatschek v. Larner — 112 N.Y.S. 1024

Majority

p. 1024

POLLATSCHEK v. LARNER.

(Supreme Court, Appellate Term.

November 24, 1908.)

Headnote

Appeal and Eebor (§ 1003*)—Review—Verdicts Against Evidence.

Where, in an action by a broker to recover commissions, the testimony of the parties conflicts as to plaintiff being the procuring cause of the sale, and the unimpeached testimony of the purchaser shows that the plaintiff first mentioned the house to her, showed it to her and induced-her to buy it, judgment in favor of defendant is against the preponderance of the evidence.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3938; Dec. Dig. § 1003.*]

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Jacques Pollatschelc against Edward W. Earner. Judgment for defendant, and plaintiff appeals.

Reversed.

Argued before GILDERSEEEVE, P. J., 'and MacEEAN and SEABURY, JJ.

Elek John Ludvigh (James A. Eight, of counsel), for appellant.

Plenry A. Brann, for respondent.

While the testimony of the parties conflicted herein as to the plaintiff being the procuring cause of the sale of defendant’s house at No. 27 Morningside avenue, this city, the testimony of the disinterested purchaser, unimpeached, that the plaintiff first mentioned the house to her, showed it, and induced her to buy it, quite turned the balance in favor of the plaintiff, and the judgment in this action to recover commissions rendered in favor of the defendant was so against the preponderance of evidence that the cause should be retried.

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