Opinion
April 15, 1926.
Appeal from the Municipal Court of the City of New York, Borough of the Bronx, Second District.
Abraham M. Schwartz, for the appellant.
Owen S.M. Tierney, for the respondent.
On the issue whether plaintiff, broker, at defendant's request procured the purchaser, who thereafter entered into a written contract with the defendant for the purchase of the premises, plaintiff made out a prima facie case. The facts testified to by plaintiff indicated an agreement on the part of the defendant to pay plaintiff for commission so much of the purchase price as exceeded $9,500, and although plaintiff's understanding of his contract, as distinguished from the contract evidenced by the facts testified to, seems inconsistent with such facts and the claim specified in the bill of particulars, such inconsistency, while a proper subject of consideration by the jury, does not as matter of law destroy the plaintiff's prima facie case. ( Ochs v. Woods, 221 N.Y. 335; Mussen v. White, 16 N.Y.S. 951; Stocking v. Seed Filter Mfg. Co., 155 id. 195; Nicolls v. Lyons, 144 id. 19; Cohen v. Levy, 77 Misc. 98.)
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.