Shapiro v. McLaughlin — 56 N.Y. St. Rep. 283

Majority

p. 283

Aaron S. Shapiro, Resp’t, v. Arthur W. McLaughlin et al., App’lts.

(New York Common Pleas, General Term,

Filed December 4, 1893.)

Headnote

Judgment—Pboobs.

The judgment must conform to the allegations and the proofs.

Appeal by the defendants from a judgment of the district court in the city of New York for the fifth judicial district, rendered upon a trial before the justice thereof, without a jury.

The opinion states the nature of the action and the material facts.

i rederich L. Gilbert, for app’lt; Grossman & Vorhaus, for resp’t,

This action was brought to recover the sum of $81.25, as a share of a certain expected commission alleged to have been promised plaintiff by defendants. The defendant pleaded a general denial. The testimony of the plaintiff shows that the defendants promised to give him twenty-five per cent of their commissions in case they procured a loan for $25,000 upon, certain real property situate pin this city, the application for which was placed with defendants by the plaintiff in behalf of another; that the plaintiff was to receive nothing in case $26,000 was loaned ; that $25,000 was loaned; that the amount earned by the defendants was $125, out of which the plaintiff should get $31.25, twenty-five per cent, of said .sum. The defendant, Arthur W. McLaughlin, was the only witness called by the defendants; he denied that he ever agreed to pay the plaintiff any part of his commission on the loan in question. The justice rendered a verdict in favor of the plaintiff for twenty dollars damages, besides $3.50 costs.

It is obvious that the judgment' is not consistent with the proofs. Precisely a similar question arose in Fuld v. Kahn, 4 Misc. (Delehanty), 600; 54 St. Rep., 134 , and this court decided that the recovery was not secundum allegata et probata.

Applying the principles of the decision in that case to the one

p. 284

before us the judgment should be reversed and a new trial ordered, with costs to abide the event.