
    Title Guarantee and Trust Company, Appellant, v. Peter Carroll, Respondent.
    
      Contract — agreement to make loan — evidence.
    Reargument of an appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 27th day of September, 1910, dismissing its complaint.
   Burr, J.:

The uncontradicted evidence establishes the making of a written contract between plaintiff • and defendant, the performance of services by the plaintiff, its readiness to make the loan on defendant’s property, and defendant’s refusal to accept the same or comply with- the terms of the written agreement as to expenses. If defendant was entitled to any relief from this written contract on the ground of fraud or mutual mistake, the Municipal Court would have no jurisdiction to grant equitable relief of that character. But the evidence does not warrant such relief. Defendant admits an agreement with a broker to procure him a loan, for which he was to pay the broker five per cent, and the uncontradicted evidence is that the broker, acting in defendant’s behalf, made application to the plaintiff. This made defendant responsible to plaintiff, and in addition it appears that the broker consented that the amount of plaintiff’s bill should be deducted from the commissions to be paid to him. Upon defendant’s own testimony and the uncontradicted testimony in behalf of plaintiff, plaintiff was entitled to recover. The. judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., and Thomas, J., concurred; Hirschberg and Woodward, JJ., dissented.

Judgment of the Municipal Court reversed on reargument and new trial ordered, costs to abide the event.  