
    Charles F. Winch, Resp’t, v. Wallace C. Andrews, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 5, 1894.)
    
    Appeal—Dismissal.
    In a personal action where the plaintiff, at the close of the case, unquaL ifiedly admits that he has no right of action against defendant individually and does not move to amend his complaint, a motion to dismiss should he granted.
    Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial upon the minutes.
    
      James W. Hawes, for app’lt; Frederick G. Gedney, for resp’t.
   Bookstaver, P. J.

This action was brought to recover commissions as broker upon the sale of “2,000 shares of the stock of the Standard Gras 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 de-, fendant, 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 Gras 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 ease 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.  