Gregor v. McKee — 43 N.Y.S. 486

Majority

p. 486

(18 Misc. Rep. 613.)

GREGOR et al. v. McKEE et al.

(City Court oí New York, General Term.

December 12, 1896.)

Headnote

Evidence—Relevancy.

In an action tor a broker’s commissions, it is not relevant that defendant paid commissions to another broker, who effected a sale of the property to a purchaser other than the one procured by plaintiff.

Appeal from special term.

Action by Charles B. Gregor and others against John McKee and others for commissions as real-estate agents. From a judgment entered on a verdict in favor of plaintiffs, defendants appeal. Affirmed.

Argued before VAN WYCK, C. J., and FITZSIMONS and O’DWYER, JJ.

George W. McAdam, for appellants^

Sol. 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 théir chance with the jury, they cannot now be 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 weigh

p. 487

ing the evidence, and carefully protected the rights of the defendants, and the determination of the jury will not be disturbed.

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 commission 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 sale to a different purchaser, and evidence as to the one question has 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 22d, called for a conclusion, and was properly excluded. The facts on which the conclusion was based were testified to. Defendants stated that they 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. All concur.