Opinion
May Term, 1901.
Henry Zirn, for the appellant.
John P. Donnelly, for the respondent.
The complaint alleges that the action is for commissions on sale of real estate. The defendant demanded a bill of particulars, which was duly furnished, and which states that the plaintiff's claim is "for negotiating as broker with A. Roth, of whose share of the commission he has received an assignment, the exchange of the defendant's realty No. 164 McKibben St., Brooklyn, for real estate owned by Ullrich Maurer in Way Av., Jamaica, Queens Co., during or about Nov., 1900." On the trial the plaintiff gave testimony tending to show that the defendant had placed his property for sale with a real estate broker named Grossman, and that the exchange referred to in the bill of particulars was effected by the united efforts of Grossman, Roth and the plaintiff, with the knowledge and consent of the defendant, and with the understanding that but a single commission should be paid. The evidence tends to show these facts, although it is not very clear or entirely satisfactory, and a decision upon the merits in favor of the defendant might possibly have been affirmed. But the plaintiff testified directly to the rendition of the services on defendant's employment, and that after the transaction was consummated the defendant expressly promised to pay the commission in a few days. There was evidence, therefore, requiring a submission of the case to the jury, had the trial been by jury. At the close of plaintiff's case, however, the court dismissed the case on defendant's motion. This is to be regarded as the granting of a nonsuit, and where there is sufficient evidence to require a submission and decision of the case upon the merits, a nonsuit constitutes reversible error. ( Scofield v. Hernandez, 47 N.Y. 313; Place v. Hayward, 117 id. 487; Forbes v. Chichester, 125 id. 769; Cowen v. Paddock, 137 id. 188, 191; Raabe v. Squier, 148 id. 81; Vitelli v. Nassau Electric R.R. Co., 53 App. Div. 639. )
The contract for the exchange of the property was executed by the defendant with Ullrich Maurer, who testified that he signed it with authority and on behalf of his wife, who was the real owner. He testified that he delivered the property. If the defendant actually received a good title to the lots there can be no force in the defendant's objection to the validity of the contract executed. This point may be made clear on a new trial. The court of its own motion permitted the plaintiff to amend his complaint by alleging an assignment of his interest in the commission from Grossman, but denied the plaintiff's motion for a like amendment in the case of Roth. As the bill of particulars distinctly stated that the plaintiff claimed by virtue of an assignment from Roth, it is doubtful whether the amendment was actually necessary, but in view of the court's action in voluntarily amending the complaint so as to cover Grossman's interest, the plaintiff's motion as to Roth should have been granted.
We express no opinion upon the merits of the controversy, desiring only to emphasize the fact that even if the condition of the proof would have justified a decision in the defendant's favor, it certainly does not warrant the conclusion that there was no evidence at all to support the plaintiff's claim. It is the plaintiff's right that the sufficiency of his evidence should be considered and determined by the trial court. As Judge EARL said in Forbes v. Chichester ( supra), "The plaintiff may fail to satisfy any court, upon all the evidence, that he is entitled to recover. But he has the right to have his evidence properly weighed."
The judgment should be reversed.
All concurred, except GOODRICH, P.J., dissenting.
Judgment of the Municipal Court reversed, and new trial ordered, costs to abide the event.