Opinion
April 19, 1928.
Appeal from the Municipal Court, Borough of Manhattan, Ninth District.
Arnstein Levy [ Morris J. Bricker of counsel], for the appellant.
Herman Goldman, for the respondent.
In this action by a broker for commission earned, the defendant put in evidence a receipt for the commission and a general release executed by another broker. The evidence was objected to as incompetent, immaterial and irrelevant, and its incompetency is self-evident. The admissibility of even competent evidence of such a payment is very much limited. It is spoken of as possibly relevant in the case cited by respondent, namely, Hendricks v. Daniels (19 N.Y.S. 414). It is expressly approved in but a single case, namely, Sewell v. Collison ( 123 A.D. 586) as justified where plaintiff tenders the issue of defendant's bad faith in attempting to avoid the payment of any commission. (See, also, Parnall v. Farson, 199 A.D. 525, 530.) As such an issue would ordinarily not be permitted to obtrude itself upon the trial, it is evident that cases in which such evidence becomes material are very rare. The error is emphasized in the instant case by the claim that the circumstances of this payment, if there were one, might raise grave doubt as to the defendant's good faith, and that oral evidence on the subject with the correlative right to cross-examination might prove favorable to plaintiff's version. The error cannot, therefore, be regarded as immaterial.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, BIJUR, LYDON and LEVY, JJ.