Opinion
March, 1931.
Judgment dismissing complaint reversed upon the law and the facts and a new trial granted, costs to abide the event. Plaintiff made out a prima facie case. The admissions in the pleadings and plaintiff's Exhibit 1 established his case. In the present state of the proof, the language in the rider, purporting to defer payment of the brokerage, is innocuous. The admissions of defendant in plaintiff's Exhibit 1 are, however, not conclusive; they are subject to proof establishing as a fact, if it be a fact, that the language in the rider, purporting to defer payment of the brokerage, was part of the initial contract of employment, which evidence, if accepted by a jury, would overthrow the prima facie case established by the admissions of defendant in plaintiff's Exhibit 1. ( Amies v. Wesnofske, 255 N.Y. 156.) Lazansky, P.J., Kapper, Carswell, Scudder and Davis, JJ., concur.