Gommersall v. Crew — 31 N.Y. St. Rep. 555

Majority

p. 555

William H. Gommersall, App’lt, v. Henry Crew et al., Resp’ts.

(New York Cmmon Pleas, General Term,

Filed June 2, 1890.)

Headnote

1. Brokers—Commissions.

In an action to recover commissions as a broker on the purchase of real estate, there was a conflict of evidence as to the employment of plaintiff

p. 556

by defendants. It was admitted that plaintiff was employed by the other party to the transaction, and there was a doubt as to defendants’ knowledge of that fact. Held, that a judgment for the defendants was proper.

2. Evidence—Offer of compromise.

An offer of compromise made to save trouble and purchase peace is not admissible in evidence.

Appeal from a judgment in favor of defendant, rendered in the district court of the city of New York for the second judicial district

TV. P. Taylor, for app’lt; McCarthy, Lawrence & Bitcldey, for resp’ts.

The evidence in this case as to the employment of the plaintiff as a broker by the defendants is very conflicting; while the plaintiff admits that he was employed by the party of whom the property was procured, as a broker, although he claims that the defendants knew of such employment, which they deny. The judgment being on conflicting evidence, and especially as there is a doubt as to whether or not the defendants knew of plaintiff’s employment by the other party to the transaction, the judgment was properly rendered in favor of the defendants.

It is contended on the part of the appellant that the testimony of Mr. Toler, a witness for the plaintiff, was improperly stricken out He was the attorney for the plaintiff, and Mr. Crew, one of the defendants, had an interview with him. From Mr. Toler’s testimony it does not appear whether or not what was then said by Mr. Crew related to an effort to compromise the matter. But that it had relation to such an effort is distinctly testified to by Mr. Crew, who said that he made plaintiff's attorney an offer to save trouble. A party has a right to purchase his peace, and to make an offer of compromise for that purpose, but such offers are not evidence. We think the evidence, in the light of Mr. Crew’s testimony, was properly stricken out.

The judgment should, therefore, be affirmed, with costs.

Larremore, Ch. J., and Bookstaver, J., concur.