King v. Hammond — 84 N.Y.S. 121

Majority

p. 121

KING v HAMMOND.

(Supreme Court, Appellate Term.

June 22, 1903.)

Headnote

1. Brokers—Variance—Action on Contract—Proof of Customs. "

Plaintiff in an action on an express contract to pay a certain commission for procuring a certain sale may not recover, ■ failing to prove the contract, on proof of a custom to pay such a commission to persons procuring such a sale.

Appeal from Municipal Court, Borough of Manhattan, Tenth District. •

Action by Robert S. King against James Hammond. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Steuer, Hoffman & Wahle, for appellant.

James J. Fitzgerald, for respondent.

The judgment in this action in favor of the plaintiff should be reversed. It is against the weight of evidence. The plaintiff sued upon an express contract alleged to have been made between himself and the defendant, whereby the defendant agreed to pay plaintiff a commission of 10 per cent, as a broker in procuring.the sale of five carriages by defendant to one Wechster. The plaintiff not only failed to prove any express contract as alleged, but was permitted, over objection and exception by defendant, to show a custom existing among carriage dealers of paying a commission of 10 per cent, to persons making sales for and on their behalf. Inasmuch as there must be a new trial, it may as well be said also that the plaintiff failed to show that he was employed by the defendant to make any sale, or was the procuring cause of the sale that was made.

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