Allen v. Rogers — 53 N.Y. St. Rep. 502

Majority

p. 502

Walter Allen, Resp’t, v. David Rogers, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1893.)

Headnote

1. Brokers—Commissions—Evidence.

In an action to recover commissions for the sale of real estate inferences from conversations with a third party as to underhand intentions on the part of the purchaser in aiding the plaintiff to swindle the defendant are inadmissible.

3. Same.

In such case, a conversation in regard to a loan of two dollars which the defendant obtained from the purchaser, and having no connection with the plaintiff or money claimed to have been borrowed' of plaintiff by defendant, is irrelevant and inadmissible.

In such case, the exclusion of evidence of defendant in answer to the question “Did you at any time know that plaintiff was working for you? ” is proper.

Appeal by the defendant from a judgment of the county court of Chautauqua county, entered on the 20th day of June, 1890; and also from an order denying the defendant’s motion for a new trial upon a case and exceptions.

W. B. Hooker, for resp’ts; John G. Record, for app’lt.

This action was an contract wherein the plaintiff claimed the existence of an agreement with the defendant to sell property owned by the defendant in the city of Dunkirk at the price then and there stated by the parties to be $16,000. It is alleged by the plaintiff that after the sale of the property at that price, he was to have three per cent, commission for his services. The defendant denies the existence of any agreement respecting the sale of this property, or that the plaintiff was ever in his employ for that purpose.

The plaintiff further claims, in addition to the making of this contract, that the defendant made hint a payment, partly in cash, and the answer contains a general denial of alb the allegations in the complaint. This appeal is made upon exceptions taken at the trial to certain evidence admitted by the trial court A verdict was brought in for the plaintiff for the relief asked for in the complaint.

As no exceptions were taken by the defendant to the charge of the court, and no request to charge was made by the defendant, nor was any motion made for a nonsuit or a dismissal of the case, it follows that it is for this court to pass judgment solely upon the question whether any errors were committed by the trial court in the admission of evidence.

The case shows several rulings against the defendant, but to which no exceptions were taken, and these of course cannot avail the defendant upon appeal for a new trial. The first exception taken by the defendant occurs in folio 78, where the defendant endeavored to show that he went to a picnic on what he was informed was an invitation from Dotterweich (the subsequent purchaser of the property in question), and that Dotterweich was aiding Allen in his efforts-to swindle the defendant. This was properly excluded by the learned trial justice. The conversation sought to be proved was not with Dotterweich, but with a party whom he had sent after the defendant. Evidence tending to prove that the defendant had negotiated with Dotterweich himself in regard to the sale of the farm would have been proper and admissible; but inferences from conversations with a third party as to underhanded intentions on the part of Dotterweich were clearly inadmissible.

Again,- at folio 84, an exception was given to the defendant upon the exclusion of -the conversation in regard to the borrowing of two dollars by defendant. This conversation was in regard to the loan of two dollars, which the defendant obtained, not from the plaintiff Allen, but from Dotterweich, and had no connection whatever with the plaintiff or the money claimed to have been borrowed of plaintiff by defendant, and hence was irrelevant and inadmissible.

To the exception taken by the defendant in regard to the exclusion of evidence in answer to the question, “Did you at any of the time know that Mr. Allen was working for you ? ” there was no error made. This question was properly excluded as immaterial, and as calling for a conclusion from the witness; it was also indefinite, and inasmuch as by the next question the

p. 504

defendant was permitted to show that at the time the contract was made he did not know that Allen claimed to he working for him, leaving the question of the admissibility of it out of the-question, there was no harm done by its rejection. The only other exception taken by the defendant which calls for decision by us relates to the exclusion by the court of the evidence that persons other than Mr. Smith made claims against the defendant, for selling land. This was rejected as immaterial to the issue. In determining the question at issue between the parties hereto, it‘would be clearly inadmissible, on the grounds of incompetency, to receive testimony to prove the non-acceptanee of the contract by the parties by slipwing that other persons had undertaken the same work as the plaintiff.

There are other exceptions, but the above are the only ones'of sufficient importance for us to pass upon, and having found that no error was committed by the justice in the admission of such evidence under the circumstances, the claims made by the-plaintiff, that the evidence shows a strong-preponderance in favor of the defendant, cannot be sustained. It is unnecessary to go-farther into the questions raised-on the trial, and for this reason it follows that the judgment of the county court should be affirmed, with costs to the respondent.

Judgment of the county court appealed from affirmed, with, costs.

Dwight, P. J., Lewis and Haight, JJ., concur.