Walker v. Johnson , 46 N.Y.S. 864 ( 1897 )

Daly, P. J.

The plaintiff, a real estate broker, sued to recover $300, agreed commission for effecting an exchange of defendant’s property No. 102 West One Hundred and Second street in this city, for a house and lot in Monterey, Massachusetts, and eight lots in North Haven, Connecticut, belonging to Carsten H. Bohlen. The chief defense to the action was that defendant was induced to part with his property for property of little or no value by the false representations of plaintiff, that the Monterey property was rented for $20 a month and the lots in Connecticut were worth $3,000; adjoining lots having been sold for $250 each. There was no doubt, upon the evidence, that the representations, if made, were false, but they were "denied; and the issues left to the jury were whether they were made and whether defendant relied upon them in making the exchange. On the latter point, the plaintiff asked and obtained a specific instruction to the jury that “ if there were false representations made and the défendant 'did not rely upon those false representations, .then no matter whether those false representations were made the plaintiff is entitled to a verdict.”

The significance of this request is found in the testimony given by the plaintiff, that defendant told him that if his (defendant’s) property was put up at auction it wouldn’t bring the mortgage and that it did not pay him to pay the interest and taxes. This x testimony was manifestly intended to impress the jury with the belief that, in making the exchange, the defendant was getting rid of worthless property which it was a burden to carry, and that, as he was in fact getting something for nothing, it was not probable that he was moved in the matter by the plaintiff’s representations.

To meet this suggestion, the defendant attempted to show the valúe of the One Hundred and Second street property, but plaintiff objected on the ground that the evidence was immaterial, irrelevant, and under the issues it was not a question as to what the value of his house was. The objection was sustained and defendant excepted. The evidence should have been admitted. The plaintiff had also testified that the Monterey property was worth a little more than defendant’s. Having thus got in his own opinion as to the value of defendant’s property and an alleged admission of the latter that it was worthless, he succeeded in shutting out defendant’s evidence on the subject as not. within the issues; and having thus insinuated a strong motive for defendant’s trying to acquire Bohlen’s property without reference to any specific valuation put upon it, procured an instruction upon which the excluded testimony would have had some bearing; for if defendant’s property was valuable., the inference might'well be, that in parting with it he relied upon representations as to the value he was to receive for it.

It is true that defendant was afterward allowed to state what he paid for the property and what it rented for when he bought it, but the error in excluding testimony of its value at the time of the exchange was not thereby cured; and the. defendant, by reason thereof, is entitled to a new trial.

Judgment reversed and new trial ordered, with costs to abide event.

Bischoff and McAdam, JJ., concur.

Judgment reversed and new trial ordered, with costs to abide event.