
    Samuel Heyman, Respondent, v. Max Singer, Appellant.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Brokers — Compensation — Actions — Evidence — Admissibility.
    Witnesses — Credibility, impeachment and corroboration — Contradiction of witnesses — Matters as to which witness may be contradicted.
    Postponement — Nature and grounds — To obtain further 'testimony.
    Where, in an action against a broker to recover upon his alleged agreement in case be effected the sale of a house to pay plaintiff a certain sum, it appears that the owner sold the property but it does not appear probable that plaintiff aided in bringing the parties to an agreement upon the price and it was not shown that the sale was effected by the broker, a judgment for the plaintiff should be reversed.
    In such an action the admission in evidence of the examination in supplementary proceedings of the owner of the property tending to show that the defendant, as broker, effected the sale was error.
    Such examination was not admissible to affect the credibility oí the owner as a witness where he had not been interrogated regarding any fact as to which it was proposed to contradict him, nor had his attention been called to the testimony he gave on the examination and the examination did not contradict him in any material point.
    If the examination had been admissible it would have been error to refuse the adjournment for which defendant asked to enable him to meet such testimony.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city Mew York, fifth district, borough of Manhattan.
    J. A. Seidman, for appellant.
    Gainsburg & Soloman, for respondent.
   Gildebsleeve, J.

The plaintiff brought this action upon a claim made by him that the defendant promised and agreed that, in the event of Singer (the defendant) who was a real estate broker making a sale of property owned by one Fishel to one Tauzer, the defendant would pay plaintiff the sum of $500. There is no dispute but that Fishel sold the real estate to Tauzer. What the plaintiff did to aid Singer in making the sale is more difficult to determine. Plaintiff makes no claim to having seen Tauzer regarding the sale. He testifies, however, that he saw Fishel several times about the property. His conversations with Fishel, as detailed by him on his direct examination, was one in September and consisted in Fishel saying at that time “ there is a difference of a few thousand dollars ” and a second one in which Fishel said: “ Heyman, the bargain is closed ” and still another in which plaintiff informed Fishel that he (plaintiff) was to get $500 of the commissions and Fish el’s replying: “All right I will hold the money and you get Singer around and I will give you the $500.” The plaintiff and his partner were, at this time, lessees of the property but when the sale was made to Tauzer they surrendered their lease and the plaintiff expressly says that no part of the $500 claimed by him was for the surrender of his lease. On cross-examination, after repeating the conversation had with Fishel substantially as told on his direct examination, he also says that he told Singer all about the rents of the premises, how the rooms were and that the sewer was not in a good condition and also that at one time he told Fishel that $129,000 was a reasonable price for the houses and that “ I think you should sell for that.” During this time negotiations were going on between Fishel and Tauzer, which finally resulted in Fishel taking Tauzer’s offer of $129,000 for the property. Singer was not sworn, but plaintiff’s testimony was contradicted by Fishel, who testified that whatever conversation the plaintiff had with him was concerning his lease which seems to have obligated'the plaintiff to pay more for the premises than the plaintiff was able to pay.and which rent had been once lowered by the owner and which lease the plaintiff and his co-lessee were willing to surrender without compensation in case of a sale. This testimony of Fishel as to the subject of the conversations, in view of the foregoing facts, appears more probable than that anything said by the plaintiff in any manner contributed to the aid of Singer in finally bringing the parties to the same mind regarding the price of the premises. The judgment should he reversed for the following reason also. It was not shown upon the trial that Singer effected the sale between Fishel and Tauzer. Fishel did not testify who the broker was ; and, although the defendent asked Tauzer when he was upon the witness .stand, “ who was the one that proposed you this property ? ” and did Mr. Max Singer propose his property to yon ? ” these questions were objected to by the plaintiff’s counsel and excluded by the court; so that, when the defendant rested, there was not the slightest testimony showing that this defendant consummated the sale through his efforts as a broker. An adjournment was then taken to enable the plaintiff to introduce some evidence alleged to have been given by Fishel in an examination in supplementary proceedings in an action against him by one Thaler and, upon such adjourned day, the plaintiff, over the objections of the defendant, was allowed to put in evidence the testimony of Fishel given npon his examination aforesaid. This testimony was evidently for the purpose of showing that Tauzer testified to certain facts therein tending to show that the defendant was the broker who was entitled to the commission of $1,000 for procuring the sale to be made by Fishel to Tauzer. The respondent’s attorney "claims in his brief that this was done to affect the credibility of Fishel. Fishel had not been interrogated regarding any fact as to which it was proposed to contradict him hy the offered testimony, nor had his attention been called to such testimony given by him. Moreover, the testimony read in evidence does not contradict him in any material point. The admission for that purpose was clearly error and, if offered for the purpose of showing Singer’s services as broker, it was improper to receive it. Fishel and Tauzer were both sworn upon the trial and were present in court when the adjournment was taken for the purpose of getting Fishel’s testimony given in the supplementary proceeding. Fishel was not asked regarding Singer’s services and the testimony of Tauzer regarding Singer’s services was excluded; and what Fishel testified to in the supplementary proceeding, was,"' under such circumstances, clearly incompetent and should not have been admitted. Even if it had been proper to have admitted it in evidence, the defendant was entitled to the adjournment for which he asked the court in order to meet such testimony and it was error to refuse it.

Levektbitt and McCall, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  