
    (7 Misc. Rep. 482.)
    CARROLL v. TUCKER et al.
    (Common Pleas of New York City and County, General Term.
    March 6, 1894.)
    Trial—Instructions—Evidence on Second Trial.
    On the second trial of an action, where plaintiff’s right to recover depends entirely on testimony which was not given on the first trial, it is error to refuse defendant’s request to charge that such testimony is “the only evidence in this case upon which they can find a verdict against defendants.” 26 N. Y. Supp. 86, reversed.
    Appeal from city court, general term.
    Action by David H. Carroll against Arthur Tucker and others for broker’s commissions on the sale of real estate. From a judgment of the city court (26 2T. Y. Supp. 86) affirming a judgment in favor of plaintiff, defendants appeal. Reversed.
    Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ.
    C. P. & W. W. Buckley (John Brooks Leavitt, of counsel), for appellants.
    L. L. Settel, for respondent.
   PER CURIAM.

We are of the opinion that the exception to the refusal of the trial judge to charge .the request of defendants was well taken. Upon the second trial, of the case evidence was given of admissions by the defendant Clarence Tucker, and that was the only substantial difference in the evidence on the two trials. This court has held, and it is the law of the ease, that the evidence as it stood on the first trial was insufficient to.establish the agency of Thompson in the employment of Carroll. Upon the second trial evidence was given of an admission of the defendant Clarence Tucker that Thompson had authority to employ another broker, and upon that, and that alone, the plaintiff was entitled to go to-the jury. If such evidence had not been given, it would have been the duty of the trial court to dismiss the complaint. It was, therefore, of the utmost value to the defendants to have the jury clearly instructed that upon that evidence alone depended the right of the plaintiff to recover. In the course of a trial involving many questions of fact and a great deal of evidence, it is impossible for the trial judge to recall, at the request of counsel, that certain evidence was or was not given, or was all the evidence in the case. But upon a second trial, where the right to recover depends upon certain new testimony, and that alone, counsel is entitled to an instruction accordingly. When the court was requested by defendant to charge the jury “that the only evidence in this case upon which they can find a verdict against the defendants is the alleged admission by Clarence C. Tucker to Mr. Settel that Thompson had authority to employ another broker,” the court said, “I do charge the jury that, if that is all the evidence, the jury cannot infer any other.” Now, that left it to the jury to a certain extent to infer that there was other evidence of authority in this case, whereas there was not; and when the request was repeated: “Mr. Settel: Mr. Holbridge had testified that Mr. Clarence Tucker said that Mr. Thompson had full authority to employ a broker, and that evidence was before the jury. The Court: That is the same admission. The defendants did not ask the court to charge the jury, ‘unless they believed the evidence of the plaintiff’s attorney, they could not find,’ but ‘unless they believed the admission was made.’ ” Two witnesses testified to it, but it was the same admission. Then the defendants’ counsel, not being satisfied, asked that the jury be charged “that, if Clarence Tucker did not say to Mr. Settel that Thompson had authority to employ another broker, then their verdict must be for defendants.” The court said, “If there, is no other evidence in the case except that,” thus leaving it to the jury to decide whether there was evidence or not; and when the request was repeated it was refused. That refusal was excepted to. It certainly injured the defendants, for it left to the jury the case upon the facts without an instruction as to the only point upon which defendants relied, and that was the difference in the testimony between the first and the second trials as to the alleged admission. It will not do to say that the court had substantially charged as requested, taking all the charge together, for here was a positive refusal to charge, which was not cured by any other instruction. We shall therefore have to reverse the judgment, and order a new trial, costs to the appellant to abide the event of the action.  