
    Frederick Leo Hunter, Respondent, v. H. Townsend Blodget, Appellant.
    Second Department,
    October 4, 1907.
    Contract — agreement to pay percentage of moneys earned — evidence.
    When in an action against an architect to recover .a percentage of the profits which he earned under a contract, the question as to whether the percentage was to be figured upon the gross or net profits is in issue, it is error to exclude the contract under which the defendant was employed.
    Appeal by the defendant, H. Townsend Blodget, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 19th day of February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes. ' • ■
    
      Dwight McDonald [William N. Cohen with him on the brief], for the appellant.
    
      Joseph Fitch, for the respondent.
   Miller, J.:

The plaintiff and defendant were architects. Both were engaged in figuring upon and obtaining work for a firm of interior decorar tors. Plaintiff claims that the defendant agreed to.give him ten per cent of the gross amount of a certain contract then under consideration if he, the plaintiff, would not figure .on it, and he asserts that the defendant said that he, the defendant, received as a commission twenty per cent of the gross amount of the contract, wji.ich he would divide with the plaintiff. The gross amount- of the contract in question was $15,135. Had the-plaintiff obtained the work he would have received five per cent of that amount, or $756.75, but he claims that in consideration of his doing nothing at. all the defendant agreed to give him twice that amount, or $1,513.50., and the judgment appealed from awards him the latter sum," The defendant’s version of the- transaction was that he was to- give the plaintiff ten per cent of the net profit made hy the firm taking the contract, and the defendant says that he informed the plaintiff that his, the defendant’s,- commission was twenty per cent of such net profit. The court excluded evidence offered by.the defendant - to show the terms, of the defendant’s employment hy the firm of contractors and the exception to said ruling requires a reversal' of the judgment. It does not seem necessary to discuss the. proposition Jhat such evidence bore directly upon the- issue to be decided by the-jury. It is not' likely that the. defendant .agreed to give mpre than he was to'receive. The issue between the parties was whether the agreement was'to pay ten per cent of' the gross amount ,of the contract.or ten per cent, of the net profits, and any circumstances. bearing upon the probability or improbability of either version- of the transaction was relevant. (Ostrander v. Snyder, 73 Hun, 378, and cases cited on p. 382; affd., 148 N. Y. 757.)

The judgment and order must be reversed.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.'

Judgment and order reversed and new trial granted, costs to abide the -event.  