
    LUDWIG I. MAYER, Appellant, v. JOHN W. HAAREN, Respondent.
    
      Payment, testimony respecting when admissible, although defence not pleaded—Impropriety of action, questions as to knowledge of when admissible—Refusal to charge—New trial for newly-discovered evidence, whennot granted.
    
    This action was brought by the plaintiff, a real estate broker, upon a special contract for the sale of four houses and lots belonging to the defendant, under which plaintiff was to receive one-third of all the defendant should
    
      realize from such sale over and above $44,000. The complaint alleged a payment on account of the contract. The answer put in issue all the material allegations of the complaint. There was- no defence of payment.
    On the trial plaintiff testified that defendant had made a payment on account of the contract. Held, that questions on his cross-examination tending to show that even if a payment was made, it was not made on the contract, but for another and entirely different purpose and, as made, tended to confirm the theory of the defence, were properly allowed.
    Plaintiff having predicated his claim to an extraordinary large compensation upon the assertion that he could have secretly received and appropriated to himself $1,000; that at first he intended to retain that sum, but apprised the defendant of it because he thought he could do better by so doing. B.'eld, that questions on his cross-examination upon the point whether, as a broker, he knew that it would have been wrong to take the $1,000, were properly allowed; his appreciation of the obligations resting on him, whether he considered himself as defendant’s agent or broker being legitimate subjects of inquiry as affecting his credibility.
    Defendant having testified that it was part of the agreement that if plaintiff did not sell all the houses and lots, he should get only the usual commissions on what he did sell, Held, on this ground, as well as on the ground that the contract was indivisible, that a refusal to charge that on the one house sold the plaintiff was entitled to one-third of the amount realized in excess of $11,000, was correct.
    A new trial will not be granted on the ground of newly-discovered evidence unless it is of a character that would probably produce a different verdict if a new trial were had, nor where the party asking the new trial could with due diligence have procured the evidence before the close of the trial.
    Before Freedman and O’Gorman, JJ.
    Decided May 6, 1889.
    Appeal by plaintiff from judgment entered in favor of the defendant upon the verdict of a jury, and from order denying plaintiff’s motion upon the minutes for a new trial; also from an order denying his motion for a new trial on the alleged ground of newly-discovered evidence.
    
      Kaufman & Sanders, attorneys, and Lewis Sanders of counsel, for appellant.
    
      
      Henry H. Glass, attorney, and David Leventritt of counsel, for respondent.
   The court

(Freedman, J., writing, and O’Gorman, J., concurring) held the propositions set forth in the head note.  