
    Charles F. Winch, Respondent, v. Wallace C. Andrews, Appellant.
    (New York Common Pleas—General Term,
    February, 1894.)
    In an action against the defendant individually to recover commissions for the sale of certain common and preferred stock, in which it was alleged that plaintiff had been induced by fraud to accept a smaller sum as compensation, it was admitted that the preferred stock was the property of a corporation of which defendant was president, and the court charged that if plaintiff was not employed by defendant to sell the preferred stock, but by the company, he could not recover any sum as commission for the sale of the common stock, which was not objected to. Held, that in view of the admission and such accepted statement of the law, it was error to refuse to dismiss the complaint at the close of the case.
    
      Appeal from a judgment of this court, entered updn the verdict of a jury, and from an order denying a motion for a new trial upon the minutes.
    
      James W. Ilawes, for appellant.
    
      Frederick G. Gedney, for respondent.
   Bookstaver, J.

This action was brought to recover commissions as broker upon the sale of 2,000 shares of the stock of the Standard Gas Light Company, 1,000 preferred and 1,000 common, to one B. T. Babbitt, under an alleged agreement with defendant that plaintiff should receive five dollars for each share of the common and preferred stock sold by him or through his instrumentality. The complaint further alleges that plaintiff was misled by certain false and fraudulent representations of the defendant, relying upon which he accepted $500 as his compensation in the matter. The action is brought against the defendant individually. The facts admitted and proven on the trial show that the preferred stock was the property of the gas company of which defendant was president, and that the common stock belonged to him individually.

At the close of the case, it was admitted by plaintiff’s counsel that plaintiff had no right of action against defendant individually for commissions on the sale of the preferred stock, as such stock was owned by the company and not by the defendant; but neither at that time nor at any other did he move to amend his complaint. The court charged, at defendant’s request, as follows: If the jury find that plaintiff was not employed by defendant to sell the 1,000 shares of preferred stock bought by Babbitt, but was employed to make said sale by the Standard Gas Light Company, and made sales on its account, then he cannot recover in this case upon the cause of action set forth in the complaint herein from the defendant Andrews any sum as a commission for the sale of the 1,000 shares of common stock owned by Andrews and bought by Babbitt,” which was not objected to nor excepted to by plaintiff. Thus the law of this case as so charged was accepted by both parties.

In view of the unqualified admission of plaintiff’s counsel and under such accepted statement of the law, and in view of the pleadings, the motion to dismiss made by defendant at the close of the case should have been granted, and, therefore, as its denial was duly excepted to, the judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Bischoff and Pryor, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  