
    SHAPIRO v. McLAUGHLIN et al.
    (Common Pleas of New York City and County, General Term.
    December 4, 1893.)
    Trial—Unsupported Finding.
    In a suit for commissions promised, the answer denying generally, , plaintiff testified that defendants promised him one-fourth of their commissions if they procured a loan of $25,000 on certain realty, the application being placed by plaintiff with defendants for a third person; that said amount was loaned, and the amount earned by defendants was $125, out of which plaintiff should get $31.25. One of defendants testified that ive never agreed to pay plaintiff any part of his commission on the loan. Held, that a judgment for plaintiff for $20 and $3.50 costs was not secundum allegata et probata.
    Appeal from fifth, district court.
    Action by Aaron S. Shapiro against Arthur W. McLaughlin and another for commissions promised. Judgment for plaintiff. Defendants appeal.
    Reversed.
    Argued before BISOHOFF and GIEGERICH, JJ.
    Frederick L. Gilbert, for appellants.
    Grossman & Vorhaus, for respondent.
   GIEGERICH, J.

This action was brought to recover the sum of $31.25 as a share of a certain expected commission alleged to have been promised plaintiff by defendants. The defendants pleaded a general denial. The testimony of the plaintiff shows that the defendants promised to give him 25 per cent, of their commissions in case they procured a loan for $25,000 upon certain real property situate in this city, the application for which was placed with defendants by the plaintiff in behalf of another; that the plaintiff was to receive nothing in case $26,000 was loaned; that $25,000 was loaned; that the amount earned by the defendants was $125, out of which the plaintiff should get $31.25, 25 per cent, of said sum. The defendant Arthur W. McLaughlin was the only witness called by the defendants. He denied that he _ ever agreed to pay the plaintiff any part of his commission on the loan in question. The justice rendered a verdict in favor of the plaintiff for $20 damages, besides $3.50 costs. It is obvious that the judgment is not consistent with the proofs. Precisely a similar question arose in Fuld v. Kahn, 4 Misc. Rep. 600, 24 N. Y. Supp. 558, and this court decided that the recovery was not secundum allegata et probata. Applying the principles of the decision in that case to the one before us, the judgment should be reversed, and a new trial ordered, with costs to abide the event.  