Auten v. Jacobus , 46 N.Y.S. 681 ( 1897 )

Schuchman, J.

This is an appeal from a judgment entered on a verdict -of a jury, and from the order denying the defendant’s motion for a new trial, made on the judge’s minutes.'

The action is brought to recover the sum of $240 for broker’s commissions in negotiating a sale of the house No. 171 West Seventy-sixth street, in the city of New York, to the defendant.

The defendant, in a letter addressed to the plaintiff, wrote, “ I will give twenty-four thousand dollars and pay your commission, etc.”

This and other evidence in the casé conclusively proves the employment of the plaintiff by the defendant. Subsequently defendant requested the modification of the terms of the purchase of said premises in regard to having an $18,000 mortgage placed on the same, and stated that otherwise he had not the means to buy and pay for the said premises.

. Plaintiff and the owner, one Mr. Cook, assured the. defendant of the said mortgage towai’d part payment of the purchase price, and a provision in that respect could have been incorporated in a proposed written contract for the salé and purchase of the said property, but when the plaintiff or his agent had arranged sufficiently so as to bring the minds of the seller, Cook,, ánd the defendant, the purchaser, together, defendant evaded by some new excuse, for instance, that his wife was in feeble health and did not want to undertake the care- of a household, or that his son was away in Boston, and would not return for a day or so, and that he wanted his son to look at -the house again.

It appears clearly that the defendant resorted to dilatory excuses, -It appears also clearly that the plaintiff substantially, performed his engagements as broker and had fairly earned his commission.

There was some conflict of evidence but the jury’s verdict disposes of that.

The jury’s verdict is fully sustained by the evidence.

The evidence allowed against the defendant’s exception and objection, although erroneously admitted, could not, and did not, infl uence the jury’s verdict, and the exceptions are without merit. The judge’s charge presents no reversible error. Judgment and order appealed from affirmed, with costs.

Van Wyok, Oh. J., and McCarthy, J., concur.

Judgment and order affirmed, with costs.