
    Garrett V. Van Doren, Resp’t, v. Taylor Jelliffe, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. Brokers—Competency of plaintiff to testify to customary commissions.
    In an action for commissions as real estate broker, the plaintiff, after testifying that he had been engaged in that business for twenty-six years, all but four in New York, was permitted to state the customary commissions on sales of real estate. Wo preliminary examination was demanded by defendant. Held, no error.
    3. Same—Evidence.
    On cross-examination plaintiff was asked concerning certain payments made to him by the purchaser, and stated that some of them were for advertisements. Neld, that this was strictly responsive, and that a motion to strike it out was properly denied.
    :3. Same—Assignment of claim.
    Defendant having proved, under his defense that plaintiff was not the real party in interest, that he had assigned the qlaim, plaintiff was entitled to prove a re-assignment to himself, although not pleaded in the complaint.
    ■4. Same.
    Evidence that defendant and the purchaser, before the contract was executed in the city of Wew York, contemplated its execution elsewhere is immaterial.
    5. Trial—Evidence.
    The allowance of further direct evidence after the plaintiff has closed, is discretionary with the trial judge.
    6. Same—Leading questions.
    The allowance of a leading question does not present ground for reversal unless it appears that the appellant was prejudiced thereby.
    7. Appeal—Common pleas.
    The court of common pleas, upon appeal from the city court, can only reverse when the error complained of is presented by proper exceptions.
    Appeal from judgment of the general term of the city court, affirming a judgment for plaintiff entered upon the verdict of a jury, and affirming, also, an order denying defendant’s motion for a new trial. Action to recover for services as a real estate broker, in effecting the sale of defendant’s farm in Hew Jersey, the defenses being a denial that the services were performed, an averr ment that plaintiff was not the real party in interest, and that the contract of employment was void because oral, under a provision of the laws of the state of New Jersey requiring such contracts to be in writing.
    
      E. M. Wight, for resp’t; Benjamin Estes, for app’lt.
    
      
       Affirming 41 St. Rep., 96.
    
   Bischoff, J.

Having omitted to move for a non-suit, or for the direction of a verdict in his favor, defendant has conceded that there was evidence sufficient to warrant the jury in finding a verdict for plaintiff. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628, 632 ; Rowe v. Stevens, 44 How. Pr., 10; St. John v. Skinner, id., 198; Caspar v. O'Brien, 47 id., 80; and without an exception to a refusal of either of such motions, we are without power on an appeal from a judgment of the city court to inquire into the suffi•ciency of the evidence. Schwinger v. Raymond, 105 N. Y., 648; 7 St. Rep., 544; Walsh v. Schulz, 67 How. Pr. 186; McEteere v. Little, 8 Daly, 167; Rowe v. Comley., 11 id., 318; Smith v. Pryor, 16 id., 169; 30 St. Rep., 553.

For such reason we must assume the existence of every fact essential to the validity of the verdict and judgment, and may search only among the exceptions taken to the trial justice’s rulings in the admission and exclusion of evidence, and the charge .and refusals to charge, for error requiring reversal.

The first exception appears to the overruling of defendant’s objection to the competency of plaintiff as an expert to testify to the customary commissions of real estate brokers. Plaintiff had previously testified that he had been engaged in business as a real estate broker for twenty-six years, and during all but four in the •city of New York, and that he was acquainted with the customary commissions of brokers on the sale of real estate. No preliminary examination of the witness was demanded by defendant’s •counsel, and the witness was allowed to state the customary commissions. We perceive no error in this. Whether, or not, a witness is competent to give expert testimony is a preliminary question of fact, which must be determined by the trial justice, and his decision will not be reversed unless it appears to be against the evidence or wholly or mainly without any evidence to support it. Slocovich v. Orient Mut. Ins. Co., 108 N. Y., 62; 12 St. Rep., 806. We think that in the present case the trial justice was justified in assuming from the witness’ twenty-six years of experience that he knew the customary charges of real estate brokers.

On cross-examination, plaintiff was asked whether the claim in suit had ever been ^assigned. This was to substantiate the defense that plaintiff was not the real party in interest, and it was conceded that the alleged assignment was in writing. Plaintiff’s counsel objected on the ground that the paper itself was the best evidence of the fact, and this objection was sustained. The question was improper, since no foundation for the introduction of secondary evidence had been laid, Berg v. Carroll, 40 St. Rep., 811; but, assuming that the question should have been answered, the exception taken to its exclusion was waived by defendant’s subsequent introduction of plaintiff’s testimony to the fact of the assignment. Neil v. Thorn, 88 N. Y., 270, 277 ; Crosby v. Day, 81 id., 242.

On further cross-examination, plaintiff was asked concerning certain payments made to him by Winchester, the purchaser of defendant’s farm, in reply to- which he stated that some of the payments were made for advertisements. The court properly denied defendant’s motion to strike that testimony out, as it was clearly responsive, and the same may be said of the witness’ testimony to the effect that he did not think that he told defendant that. Winchester had accused him of not “ working true for him.”

The next exception was taken to the admission in evidence of "a reassignment of the claim in suit to the plaintiff before the commencement of - this action. The ruling was a proper one. Plaintiff was not obliged to anticipate the defense that he was not the real party in interest by alleging in his complaint the fact of the assignment by and the reassignment of the claim to him, and it was competent for him to meet the issue raised by the defense by showing the fact of the reassignment. Johnston v. The American Writing Machine Co., 22 St. Rep., 429, cited by appellant’s counsel, holds that it is error to allow evidence of a fact not in issue and so has no application, since under the provisions of the Code of Civil Procedure, § 522, the allegations of the answer respecting the defense that plaintiff was not the real party in interest must be taken as controverted.

The objections of plaintiff’s counsel to the admission of evidence tending to show that defendant and Winchester, before the contract for the sale of the farm was executed in the city of New York, contemplated the execution of it elsewhere, were proper, and the evidence excluded was so clearly immaterial as not to merit discussion.

Several exceptions were taken to the allowance of questions < n defendant’s cross-examination, but in each instance the question related to matters previously testified to by defendant and were, therefore, properly allowed.

Of the two exceptions taken on defendant’s re-cross-examination one is invalid because the question at which defendant’s objection was aimed had been answered, and no motion was made to have the answer stricken out; and the other because the motion to strike out was properly granted, the answer not being responsive to the question of plaintiff’s counsel.

The exception taken on the further direct examination of plaintiff and based on the objection that the questions, if allowed, would re-open the case, does not require reversal, since the allowance of further direct evidence was discretionary with the trial judge; and of the two remaining exceptions on plaintiff’s further direct examination, one is without force because the ground of the objection is not stated, Cruikshank v. Gordon, 118 N. Y., 178, 180; 28 St. Rep., 784, and the other because the allowance of a leading question does not present ground for reversal, unless it appears that the appellant was prejudiced thereby. Walker v. Dunspaugh, 20 N. Y., 170.

There remain only the exceptions to the charge and refusals to charge, but these also prove upon examination to be delusive to any hope of reversal. The first exception to the alleged refusal to charge is without any force, as the court charged precisely as requested. The second is equally invalid because tjie request assumed that the contract of employment was made in Mew Jersey, while it appeared in evidence from plaintiff’s testimony that the employment occurred in Mew York; and furthermore because the matter included in the request had been previously correctly charged. The third request was properly refused, because it appeared from plaintiff’s testimony that he was employed to sell in Mew York and the jury were not bound to believe defendant’s testimony to the contrary as it was that of a party in interest. Elwood,v. Western Union Tel. Co., 45 N. Y., 549; Gildersleeve v. Landon, 73 id., 609 ; Honegger v. Wettstein, 94 id., 252; Ganjoharie Natl. Bank v. Diefendorf, 123 id., 191; 33 St. Rep., 389.

The first exception to the charge as made was taken to the instruction that the contract for the sale of defendant’s farm to Winchester was executed in Mew York, and as this was conceded on the trial no error can be predicated on the charge in this respect. The second exception is founded on the erroneous assumption that the court charged that plaintiff was employed to sell defendant’s farm for $30,000. What the court did charge was that the plaintiff had so testified. This was true, and the ' exception was therefore without force. The next exception to the charge was to the alleged,instruction that the negotiations were had entirely in Mew Jersey, and that, if the arrangement was completed in Mew York, plaintiff was entitled to recover. The court did not so charge. The fourth and only remaining exception to the charge was taken to the instruction that “ if the plaintiff introduced Winchester and the negotiations had been suspended and afterward they were resumed- and the sale was made, the plaintiff would be entitled to recover.” This proposition of law is unassailable, Levy v. Coogan, 16 Daly, 137; 30 St. Rep., 553, and the exception thereto without avail.

We observe that coupsel for appellant urges on this appeal that the charge was erroneous in that the court assumed that the commissions to which plaintiff would be entitled, if the jury found that he was employed to sell and that the sale was effected through his procurement, should be at the rate of two and one-half per centum. Upon examination, however, we observe that the charge in this respect was not excepted to, and we are for that reason without authority to review the alleged error complained of. The general term of the court below could have -granted a new trial for any error in the charge which was prejudicial to the appellant though exception was not taken thereto, but with respect to the city court our authority is no greater than that of the court of appeals with respect to this court, and we may only reverse when the error complained of is presented by proper exceptions. Schwinger v. Raymond, 105 N. Y., 648; 7 St. Rep., 544; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553.

The judgment of the general term of the court below should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.  