McCormick v. McCaffray — 55 N.Y.S. 574

Majority

p. 574

McCormick v. McCaffray.

(Supreme Court, Appellate Term.

January 23, 1899.)

Headnote

Appeal—Sufficiency of Evidence.

A judgment for brokerage, measured by a certain percentage on the price at which the property was taken on the exchange, is not sustained where the trial court assumed what the price was, without any proof thereof.

Appeal from municipal court, borough of Manhattan, Ninth district.

Action by Stephen McCormick against Catherine T. McCaffray.

Judgment for plaintiff, and defendant appeals.

Reversed.

Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.

Charles G. Cronin, for appellant.

Oppenheim, Leventritt & Brennan, for respondent.

The claim of the plaintiff for his brokerage is measured by a percentage of 1 per cent, on the price at which the property was taken on .the exchange, but what this price was does not appear from the proofs. The trial court evidently assumed it to be $60,000, and rendered judgment accordingly in favor of the plaintiff; but, as we have already stated, there was no evidence to support such assumption. The judgment must therefore be reversed.

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