Roos v. Decker — 68 N.Y.S. 790

Majority

p. 790

(34 Misc. Rep. 168.)

ROOS v. DECKER.

(Supreme Court, Appellate Term.

February 25, 1901.)

Headnote

1. Appeal and Error—Offer of Settlement—Evidence—Prejudice.

Where,' in an action to recover compensation for procuring a sale of defendant’s property, plaintiff, over defendant’s objection, was permitted to introduce testimony that defendant had offered plaintiff one-fourth of the amount of his claim to settle it, and a verdict was rendered in plaintiff’s favor against the overwhelming weight of evidence, the judgment should be reversed, since such offers of settlement are privileged, and cannot be given in evidence, and the testimony probably had some influence with the jury.

2. Same—Verdict—Weight of Evidence.

In an action for compensation for procuring a sale of defendant’s property, plaintiff gave the only testimony tending to show that he was the procuring cause of the sale. He called the purchaser as a witness, by whom he was flatly contradicted on all points, and who testified that plaintiff did not speak to him about the property until after he had purchased it, after talks with defendant’s father; and never said anything about the terms on which it could be bought, but tried to sell another house. Plaintiff was also contradicted by the purchaser’s wife and other

p. 791

witnesses, and by defendant’s father, who testified that he requested plaintiff to try to sell the house to defendant, and, after plaintiff reported that he could do nothing to bring about a sale, he went himself to the purchaser, and made the sale. Seld, that the verdict in favor of plaintiff was clearly against the weight of evidence, and the judgment should be "reversed.

Appeal from municipal court, borough of the Bronx, Second district.

Action by Gustave Roos against John W. Decker. From a judgment for plaintiff, defendant appeals.

Reversed.

Argued before ANDREWS, P. J., and O’GORMAN and BLANCHARD, JJ.

Arthur J, Westermayer, for appellant.

P. Hatting, for respondent.

This is an appeal from a judgment in favor of the plaintiff entered in the municipal court, Second district, after a trial before one of the justices of the court and a jury. The action was brought to recover the sum of $100 as broker’s commission, claimed to have been earned by the plaintiff in effecting the sale of the premises 1135 Tinton avenue, in this city, to Henry Raabe. It is conceded that the defendant conveyed the premises to said Raabe on April 27, 1900, and that, if the plaintiff is entitled to recover at all, he is entitled to receive $100. The plaintiff testified on his own behalf, and also called as witnesses his brother Louis Roos and said Raabe, who, as above stated, was the purchaser of the premises. Said Louis Roos was permitted to testify that the defendant, in his presence, had offered to pay the plaintiff the sum of $25 to settle plaintiff’s claim. The defendant’s counsel objected to the admission of this testimony, and, his objection being overruled, duly excepted, and, after the testimony was given, moved to strike out the same, which motion was denied. I think that the admission of this testimony was an error for which the judgment must be reversed. Offers of settlement of this kind are privileged, and cannot be given in evidence upon the trial; and this evidence probably had some influence with the jury, which rendered a verdict which is against the overwhelming weight of evidence. The plaintiff himself was the only witness who gave testimony on his behalf tending to show that he was the procuring cause of the sale. He also called as a witness Raabe, the purchaser, by whom he was flatly contradicted on all material points. Raabe testified, in substance, among other things, as follows:

“The plaintiff spoke to me after I had bought the house. He did not speak to me before I bought it. Perhaps he did to my wife. He offered me another house. He never said anything to me about the terms and conditions under which the house 1136 Tinton avenue could be bought. He did not speak about the house I bought, but he spoke about another house. I never called on him in regard to the key of 1136 Tinton avenue. I saw a young man,— Mr. Stanhop,—before I bought this house, many times. He spoke to me about 1135 Tinton avenue, and that was the first I heard about the house. The first time I heard that 1135 Tinton avenue could be bought was from this young man. Mr. Roos afterwards left his card in my house about 1135 Tin-ton avenue. Mr. Roos called at my house several times, but not to speak

p. 792

about 1135 Tinton avenue. Mr. Peter P. Decker spoke to me about 1135 Tinton avenue, and offered me a price, and then Mr. Roos tried to sell me another house. I went to look at the house after Mr. Decker called upon me, and examined it, and sent my wife over to look at it. I spoke to Mr. Decker about the terms for the purchase of this house, and after that the contract was signed between me and the defendant. After I had signed the contract, the plaintiff came to the house, and asked me whether I would sign the contract for another house. I told him ‘No,’ and in the evening he came again, and then told me that he had heard I bought the house 1135 Tinton avenue.”

The testimony of the plaintiff on material points was also contradicted by the defendant; the young man 'Stanhop, referred to in Raabe’s testimony; Peter P. Decker, the father of the defendant; and Teresa Eaabe, wife of the purchaser, Eaabe. It was established by a great preponderance of evidence that the plaintiff’s efforts were not the efficient cause of the sale; that in fact the defendant’s agent called his attention to the purchaser, and that he made no effort to bring about the sale of the premises upon the terms originally proposed, namely, $7,500; that he did not show the house to the purchaser, nor introduce the seller to the buyer, nor do anything, in fact, except to present to the purchaser his card, with the number of the house thereon, which was not delivered until after the negotiations were consummated; that, although the plaintiff was requested by defendant’s father, Peter P. Decker, to call on Eaabe, and endeavor to make a sale, he did not do so for 10 days after the request, and it was not until the plaintiff had said that he could do nothing to bring about a sale, and that he abandoned the matter, that the defendant’s father personally undertook to and did effect a sale at the price of $7,400, which was $100 less than the price asked.

The verdict of the jury was clearly against the weight of evidence, and the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur.