
    Thomas P. Payne, Respondent, v. John T. Williams, Appellant.
    
      Commissions of a real estate agent — competency, as to the motive for not talcing a loan, of proof that, pending negotiations therefor, the owner sold the properly — duty to move to strike out testimony or that the jury disregard it, where subsequent proof makes it incompetent—proof as to why the defendant made a certain statement and as to negotiations apparently tm'minating, held to be improper.
    
    In an action brought to recover a commission alleged to have been earned by the plaintiff for procuring, at the defendant’s request, a loan of $250,000 to he secured by a bond and mortgage, it appeared that the plaintiff procured the loan, but that the defendant refused to accept it.
    The plaintiff testified that the contract of employment was absolute and unqualified, while the defendant testified that the employment was conditioned upon the Farmers’ Loan and Trust Company, which held a mortgage upon the premises in question for $125,000, being willing to accept payment of the loan before maturity; that the Farmers’ Loan and Trust Company was unwilling to do this and that it was owing to its refusal that the defendant declined the loan.
    
      Held, that it was proper to ask the defendant, on cross-examination, whether he had sold the property in question or made a contract for the sale, just about the time when the contract for the loan was to have been closed;
    That such evidence boro upon the credibility of the defendant’s testimony by showing that he had a motive for refusing to accept the loan after it had been arranged through the plaintiff’s efforts;
    
      That the propriety oí the question was not affected hy the fact that the defendant’s subsequent testimony established that the property was sold after the negotiations for the loan had terminated, and that., consequently, the supposed motive for declining to accept the loan did not exist;
    That it was the duty of the defendant, when that testimony was given, to make a motion to strike out all the testimony relating to the sale of the property or to ask the court to instruct the j ury to disregard it.
    Upon the trial the defendant testified that he told the attorney for the party whom the plaintiff had induced to make the loan that he would not sign any contract for the loan until the Farmers’ Loan and Trust Company had agreed to accept payment of its mortgage; that he also told him, either on that day, or a day or two after, that he had notified the Farmers’ Loan and Trust Company that the negotiations for the payment of its mortgage had terminated and that he would not pay such mortgage until its maturity.
    He was then asked, “ What caused the making of that statement, what transpired between you and Mr. Payne (the plaintiff) or Mr. Lamed, that led you to make the statement to the Farmers’ Loan and Trust Company that the transaction had terminated ? ”
    He was also asked, “Then in the course of the negotiations between you and Mr. Larned or Mr. Payne for the making of this loan, was there any point at which they were apparently terminated ? ”
    
      Held, that both the questions were objectionable;
    That the first question called for incompetent matter and that the second question was immaterial.
    Van Brunt, P. J., and Laughlin, J., dissented.
    Appeal by the defendant, John T. Williams, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Richard T. Greene, for the appellant.
    
      Jacob Marks, for the respondent.
   Ingraham, J.:

This action was brought to recover a broker’s commission for procuring at the defendant’s request a loan of §250,000 to be secured by mortgages upon certain real estate owned by the defendant. The main controversy was as to the plaintiff’s employment, the plaintiff claiming that the employment was absolute and unqualified, while the defendant claimed that it was conditioned upon the Farmers’ Loan and Trust Company, who held a mortgage upon the premises for $125,000, being willing to accept payment of the loan before maturity. Upon this question there ivas a conflict of evidence, and the question was submitted to the jury; no exception was taken to the charge by either party. The defendant seeks to reverse this judgment upon exceptions to rulings upon the admission of evidence. The plaintiff testified that he had an interview with the defendant at which the defendant asked him if he could not find some one that would make a loan of $250,000 as a building loan; that the defendant showed the plaintiff a plan of the building that he intended to construct, and upon which he wished the building loan to be made; that subsequent to that conversation the plaintiff procured a Mr. George B. Turrell who was willing to make the loan; that on the léth day of June, 1899, the plaintiff asked the defendant to give him the details in regard to the loan ; whereupon the defendant gave to the plaintiff a letter as follows : “ I will agree to take a loan of $250,000 from Mr. George B. Turrell on the corner of Beach and West streets under the following conditions, which I understand are acceptable to Mr. Turrell, namely.” The details of the loan are then stated. This letter was submitted to the attorney for Mr. Turrell and the loan was accepted. Subsequently the defendant told the attorney for Mr. Turrell that he did not desire the loan and it was never completed. The defendant did not deny having employed the plaintiff to obtain a loan, but stated that he told the plaintiff that he had purchased the property upon which the loan was to be made subject to a mortgage of $125,000, held by the Fanners’ Loan and Trust Company, which was not due and which he had no privilege to pay off; that the only way that he could take the money on the property would be to get the consent of the Farmers’ Loan and Trust Company to take their money on the first mortgage; that he subsequently called on the Farmers’ Loan and Trust Company and then told the plaintiff that they thought they could arrange to take the money and put it in another loan that had been offered; that negotiations looking towards the placing of the new loan then proceeded ; that the defendant subsequently went to the office of the attorney for Mr. Turrell and stated to him that the making of any agreement with respect to the loan on the property was contingent upon his ability to pay off the loan held by the Farmers’ Loan and Trust Company, and he refused to sign any agreement for the loan until the arrangements had been made with the Farmers’ Loan and Trust Company to take the money, but that he agreed to a contract with Turrell subject to the trust company accepting the money on their mortgage; that subsequently the trust company refused to accept payment of the loan and in consequence of that refusal the loan was not accepted. Upon cross-examination the defendant was asked whether at the time the loan was being negotiated he was the owner of the premises on Broadway and Broome street, to which he answered that he was. ITe was then asked if he had been negotiating for the sale of this property; whether the value of that property was §800,000, and the further question, “ Didn’t you sell that property, or make a contract for the sale of it, just about the time this contract for the loan was to have been closed ? ” These questions were objected to and the objections overruled, to which the defendant excepted. The witness answered that $800,000 was the value of the property, and that he sold the property a couple of months after this negotiation with the plaintiff and received therefor $300,000 in cash. Upon redirect examination he further testified that in the latter part of July or some time in August he offered the Broome street property for sale to Mr. J. B. Haggin and that the same afternoon the sale was closed.

I think this evidence was proper upon cross-examination. The question between the plaintiff and the defendant was whether it was understood that the defendant had imposed as a condition for accepting a loan the consent of the Farmers’ Loan and Trust Company to pay off the existing loan upon the property. The plaintiff expressly testified that there was no such condition and the defendant testified that there was. In testing the credibility of the defendant’s testimony, it was proper to show upon his cross-examination that the defendant had a motive for refusing to accept the loan after it had been arranged through the plaintiff’s efforts, and this motive was shown by the fact that after the agreement for the loan had been made the defendant acquired, by the sale of the Broome street property, the money necessary to enable him to complete his building arrangements, so that the loan that had 'been arranged for was not required.

In determining whether or not the plaintiff or the defendant ivas to be believed as to the condition upon which he had agreed to accept the loan procured by the plaintiff, it was important for the jury to know the situation, and that there was a motive which would induce the defendant to repudiate his agreement to accept the loan procured by the plaintiff. The whole case depended upon the credibility of these two witnesses; and in testing that question it was, I think, competent to ask the defendant whether the necessity that existed for borrowing the money had ceased at the time he refused to carry out the arrangement. His testimony, however, as it stood was that the property was sold after negotiations for the loan had ended. If the jury had believed that, it was immaterial; but after that fact had been testified to, there was no motion to strike out the testimony that was given as to the sale of the property, and no request to the court to instruct the jury to disregard it. I do not think it was incompetent for the plaintiff to show by a cross-examination of the defendant that there was a motive which would induce the defendant to decline to accept the loan after it had been arranged for. The testimony as it stood failed to show that such a motive existed; and to raise the question the defendant should either have then moved to strike out the testimony, or have asked the court to instruct the jury to disregard it. The questions were not improper upon cross-examination and would not justify us in reversing the judgment.

The other exception relied on by the defendant was an exception to the court’s sustaining an objection to two questions asked the defendant. The defendant had testified that he told a Mr. Larned, the attorney for Turrell, that he would not sign any contract for the loan until the arrangements had been made with the Farmers’ Loan and Trust Company to take the money; that he had also told him, either on that day, or within a day or two after, that he had notified the Farmers’ Loan and Trust Company that the negotiations which were pending for the paying off of their loan and taking up the new loan had terminated and that, therefore, he would not pay the loan until it matured. He was then asked : “ What caused the making of that statement, what transpired between you and Mr. Payne or Mr. Larned, that led you to make the statement to the Farmers’ Loan & Trust Company that the transaction had terminated?” That was objected to, objection sustained, to which, the defendant excepted. He was then asked : Then in the course of the negotiations between you and Mr. Larned or Mr. Payne for the making of this loan, was there any point at which they were apparently terminated ? ” That was objected to, objection sustained, to which the defendant excepted. I think both of these questions were objectionable. As a part of the first question, the witness was asked: “ What caused the making of that statement ? ” That certainly was incompetent, and it was also incompetent to ask what transpired between the witness and Mr. Payne that led him to make the statement to the Fanners’ Loan and Trust Company. He had testified fully as to his conversation with the plaintiff or with Mr. Larned. The second question was also entirely immaterial. Whether there was any point at which the negotiations between the witness and Mr. Larned or Mr. Payne had apparently terminated was entirely immaterial. The question was as to what was said and done. I think this case was fairly submitted to the jury, and that there was no ruling upon any question of evidence to justify a reversal of the judgment.

It follows that the judgment and order appealed from should be-affirmed, with costs.

O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J.,. and Laughlin, J., dissented.

Judgment and order affirmed, with costs.  