Chambers v. Goldklang — 64 N.Y.S. 36

Majority

p. 36

(31 Misc. Rep. 247.)

CHAMBERS v. GOLDKLANG.

(Supreme Court, Appellate Term.

April 16, 1900.)

Headnote

1. Trial—Directing Verdict.

Where the evidence is conflicting upon a material question of fact in a cause, a direction to the jury to find for the plaintiff is error.

2. Appeal—Review—Rulings on Evidence.

The admission of evidence on behalf of the plaintiff, over the objection of defendant, and the rejection of evidence of the same character, upon the objection of plaintiff, when offered by defendant, is sufficient ground for the reversal of the judgment on the appeal of defendant.

Appeal from city court of New York, general term.

Action by Newton W. Chambers against Julius Goldklang to recover a broker’s commission for placing a loan. From a judgment for plaintiff, affirmed by the general term ( 60 N. Y. Supp. 998 ), defendant appeals.

Reversed.

Argued before BEEEMAN, P J., and G1EGERICH and O’GORMAN, JJ.

Abraham H. Sarasohn, for appellant.

Wyatt & Trimble (William E. Wyatt, of counsel), for respondent.

The action is to recover broker’s commissions for placing a loan. The answer is a general denial. The plaintiff testified that at his office, in the spring of 1897,—in April or May,— an agreement was made between the parties litigant, by the terms of which he was to procure a loan of $15,000 upon the defendant’s real property, and, when procured, the latter was to pay him a commission of 1 per cent, upon the amount of such loan. The defendant denied that he ever met the plaintiff at the latter’s office, and that he made such an agreement. As to several other material matters there was a conflict of testimony. At the close of the entire case the plaintiff moved for a direction of a verdict by the jury in his favor, which motion was granted, and the defendant took an exception.

As the defendant did not, when the proofs were all in, move for a nonsuit, or do any other act from which a waiver of the right to go to the jury may be implied, the exception so noted by him is sufficient to require a reversal of the judgment, if there was any evidence tending to establish any material fact in his favor, which, if found by the jury, might have changed the result; and it was not necessary for the defendant, in order to preserve such right, to go further, and request that any fact be submitted to the jury. Haines v. Railroad Co., 145 N. Y. 235 , 237, 39 N. E. 949 ; Baylies, Tr. Prac. (2d Ed.) 323. As we have noted, there was a conflict of testimony upon material questions of fact, which should have been submitted to the jury for their determination, and under these circumstances the direction of a verdict was not justified. Schillinger v. McGarry, 25 Misc. Rep. 745 , 749, 55 N. Y. Supp. 673 .

The defendant’s contention that during the course of the trial the trial justice admitted testimony against his objection and exception, and, upon the plaintiff’s objection, excluded testimony of the same character and equal relevancy when offered by the defendant, seems

p. 37

to be well founded; and this, likewise, is good ground for reversal. Sentenne v. Kelly, 59 Hun, 512 , 517, 13 N. Y. Supp. 529 . It results from these views that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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

Cases cited

Haines v. New York Central & Hudson River Railroad 145 N. Y. 235 N.Y. 1895-03-05 at 237, 39 p. 36
Schillinger v. McGarry 25 Misc. Rep. 745 N.Y. App. Term 1899-01-23 at 749, 55 p. 36