Opinion
June 3, 1921.
Martin J. Birmingham, for the appellant.
Frederick W. Sparks, for the respondent.
The only cause of action set forth in the complaint is for services rendered the defendant in the purchase of a house. The plaintiff, however, in addition to the allegations necessary to set forth that cause of action, has included a number of unnecessary, immaterial and irrelevant allegations which seem to indicate that the plaintiff thought his cause of action arose from some interference of the defendant with the plaintiff's claimed right of recovery against the seller of the house. These allegations were apparently urged at the trial with such force and vigor that they impressed the trial judge as setting forth the real cause of action. The court charged the jury that the action was brought to "recover the amount of commissions which the plaintiff says he was prevented from earning. * * * The plaintiff says it is a rule in real estate transactions in the city that where a man gets a customer and goes to the owner, and as the result of presenting that customer to the owner a sale is perfected, the owner pays the commission. * * * Did the acts of the defendant * * * deprive the plaintiff of the fruits of his labors, that is to say, the amount that he should have received, namely, $1,035?"
The jury's verdict in favor of the plaintiff was plainly based upon a cause of action not pleaded.
The judgment and order must be reversed and a new trial granted, with costs to abide the event.
BLACKMAR, P.J., MILLS, RICH, PUTNAM and JAYCOX, JJ., concur.
Judgment and order reversed and new trial granted, costs to abide the event.