
    Jacob Baumann, Appellant, v. The Manhattan Consumers’ Brewing Company, Respondent.
    Quantum meruit — a recovery may he had upon that basis where a special contract is alleged, but not proved.
    
    Where a plaintiff, who declares upon a special contract for services, fails to establish the' existence of the contract upon the trial, but does show that services were in fact rendered, he may recover upon a quantum, meruit.
    
    Appeal by the plaintiff, Jacob Baumann, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of December, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      George Hahn,, for the appellant.
    
      Martha Pashus, for the respondent.
   Hatch, J. :

The cause of action set forth in the complaint is upon an express contract entered into between plaintiff’s assignor and the defendant, whereby the latter promised and agreed to pay a commission of thirty-five cents per barrel upon all sales of beer made by the defendant, which should be procured through the agency of David Baumann, plaintiff’s assignor. The evidence in 'the case tended to show that Baumann was the procuring cause of the sale of a considerable quantity of beer by the defendant to a customer procured by him and that upon such sale the plaintiff was entitled to receive a commission which has not been paid. The proof failed to establish with certainty the existence of the express contract as counted upon in the complaint. Upon this subject the court charged the jury: “ If there was no usual commission, if there was no usual contract, the plaintiff must fail because he does not sue on a gwmt/u,m meruit. He does not sue for what his services were reasonably worth. The question is not open to you to determine what his services were reasonably worth. He must satisfy you that there was a usual commission and that he has earned that. * * * Upon the other side * * * witnesses * * * testified that * * * there was no usual commission, and if you determine upon the weight of evidence that the plaintiff has not satisfied you that there was a usual commission, then he must fail, because having come into court upon a certain state of facts, as alleged in his complaint, he must stand or fall upon that complaint.” To this charge the plaintiff excepted. The charge as made was erroneous. It was decided by this court in Shirk v. Brookfield (77 App. Div. 295) that where the complaint counts upon a special contract and the plaintiff fails in establishment of the same, but does show that in fact services were rendered, he may recover upon a quantum meruit. Such rule has long been the settled law. (Sussdorff v. Schmidt, 55 N. Y. 319.)

For this error it follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

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