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Halperin v. Schermerhorn

59 N.Y. St. Rep. 240 Court N.Y.C.P. Decision date 1894-05-07 English

Delivered by Giegerich, J.

Contents

Majority

p. 240
William Halperin, Resp’t, v. Arthur F. Schermerhorn, App’lt.
(New York Common Pleas, General Term,
Filed May 7, 1894.)

Headnote

1. Appeal—Fact.
The finding of the justice will not be disturbed simply because there is a conflict of evidence, in the absence of the elements justifying a review of the questions of fact.
3. Removal op action—Waives.
The defendant, by electing to proceed to trial and submitting to the jurisdiction of the court below, waives his right to remove the action into the court of Common Pleas.
3. Evidence—Contbact.
What was done on other occasions, does not show what the contract is in reference to the transactions in question.
p. 241
Appeal by the defendant from a judgment of the district court in the city of New York for the eleventh judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff. Action to recover plaintiff’s share of brokers commissions. The answer was a general denial. Tender of $31.50 and a counterclaim for moneys loaned and advanced amounting to $66.50. The opinion states the facts, so far as they are material.
Seymour & Uojjkins, for app’lt; Foley & Powell, for resp’t.

The parties litigant are real estate brokers in this city at the time of the transactions hereinafter mentioned. By their joint efforts two loans were placed, from which the defendant received in the aggregate $332.50. It was substantially conceded by the defendant, at the tidal, that when a loan is secured by two brokers working together, the custom and usage in this city in the absence of an agreement is to divide their commissions equally. But the defendant contends that there was an express agreement between the plaintiff and himself whereby the plaintiff agreed to first submit all his applications for loans to such defendant, and if any should be placed between them, the plaintiff was to receive a proportion of the commissions which were to depend upon the amount of the loan, viz: thirty-three and one-third per cent, on small loans and twenty-five per cent, on large loans. The defendant also testified that he had loaned and advanced to the plaintiff, at various times, sums aggregating $66.50, which the latter failed to repay. The defendant, on the other hand, testified that he borrowed small sums which were always deducted from the moneys earned by him, from time to time, for divers services rendered by him to the defendant; and he denied that he was indebted to the latter in any amount whatsoever. After the close of the transactions referred to, the plaintiff wrote to the defendant: “ ' * * if you pay me $150, then I can return your $50 and all your cloths * * * ; ” and subsequently he wrote : “ I do notify you a third time that you shall settle my account of $84.50 cash of the $150,"which is deducting the 50 and appraisement, otherwise you will hear some legal action together of formerly claims.” It is urged by defendant’s counsel, that these are admissions by the plaintiff that he owed $50 to the defendant for money loaned ; but the evidence, in our opinion, does not support this construction. It is apparent that the plaintiff is a foreigner who is not familiar with the English language, and this fact, considered in connection with the entire evidence, justified the inference, which was undoubtedly drawn by the justice, that the letters were written at a time when the plaintiff was ignorant of the amount received by the defendant upon the last or Meyer loan, and were indited with a view rather to effect a compromise than to admit any indebtedness to the defendant. We are confirmed in this view by the following testimony of the plaintiff: “ Q. Now, Mr. Halperin, when this Meyer loan went through, did you owe Mr. Schermerhorn any money ? A. Not a cent; I don’t know myself where it comes from, that money that

p. 242
lie demands of me. Q. Is there anything you'wish to state in regard to it ? A. Since lie came to demand $50 I told him, $50, what is the matter; all you have given me for services you put it down on the book.• I said’to him, if I would know it that way, I would have left the office two years ago, and would not stayed in your office; one week he said $25, and two or three weeks afterwards raised up another $25.” The defendant testified that he paid to the plaintiff the sum of $21 on account of commissions on the loans in question, and the plaintiff, on the other hand, testified that he received but the sum of $20. There was also a conflict of evidence as to what compensation the plaintiff was to receive for his services, and we think that the justice’s determination of the facts in this regard and with respect to the other-questions litigated on the trial, is amply supported by the evidence. We have repeatedly held, that the finding of the justice will not be disturbed simply because there is a conflict of evidence. Lynes v. Hickey, 4 Misc. Rep. 522 ; 54 St. Rep. 120 ; 24 N. Y. Supp. 731 ; Weiss v. Strauss, 39 St. Rep. 78 ; 14 N. Y. Supp. 776 . There being an utter absence of the elements justifying a review of the questions of fact, we will not interfere with the justice’s determination of the facts herein. After the judgment heretofore rendered in this action had been reversed and a new trial ordered ; and the case had been remanded to the court below, the defendant applied for the removal of the action to this court, which application, was denied. We think that, in view of the circumstances of the case, the justice ruled correctly. The justice’s return on the former appeal and which former part of the record in the present case shows that, after joinder of issue, an adjournment was had by consent and that the defendant and plaintiff proceeded to trial. Having elected to proceed to trial and submitted to the jurisdiction of the court below, the defendant was bound by his election and lie undoubtedly waived his right to remove the action. See Krahner v. Heilman, 16 Daly, 132 ; 30 St. Rep. 434 ; 9 N. Y. Supp. 633 . The evidence offered of previous,dealings between the parties litigant, wherein commissions were divided between them upon the same basis as the agreement which the defendant claimed he made with the plaintiff, was properly excluded. What was done on other occasions would not show what the contract was in reference to the transactions in question, Bonynge v. Field, 81 N. Y. 159 . We have examined with great care the other exceptions taken at the trial, and points raised on this appeal, and fail to discover the existence of any substantial error which would require the reversal of the judgment appealed from.

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

Bischoff, P. J., concurs.

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