
    John B. Kearney, Respondent, v. Robert Alexander, Appellant.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court, eighth district, borough of Manhattan.
    Gr. A. 0. Barnett, for appellant.
    Walter L. McOorkle, for respondent.
   Freedman, P. J.

On the 27th day of August, 1898, the parties to this action signed a writing, in which it was stated, in substance, that the plaintiff had placed with the firm of Strong & Cadwalader, an application for a loan of $10,000, at four and one-half per cent, interest, for three or five years, upon the property of the defendant, and that the commission to be paid the plaintiff for obtaining the loan was to be the sum of $150. Thereafter, the plaintiff, claiming that Strong & Cadwalader had accepted such offer, and were ready and willing to loan the money as agreed upon, and that he had notified the defendant to that effect, who thereupon refused to accept it, and who stated that he (defendant) had obtained the loan elsewhere, brought this action to recover his said commissions and obtained a judgment in the court below for the amount above stated.

The defendant testifies that about September 12, 1898, and before the defendant had obtained the loan, the plaintiff came to defendant’s place of business and stated to defendant that he (plaintiff) was greatly disappointed, as he had been unable to obtain the loan. It appears from the' testimony that a heated controversy then took place between the parties, each threatening to bring a suit for damages, and that finally the plaintiff peremptorily refused to obtain the loan unless he was-paid the sum of fifty dollars more than was agreed upon in the writing signed by the parties above referred to.

This testimony given by the defendant was fully corroborated by two of his employees, by the brother of the defendant and by one Frank Boyce, who appears to be a disinterested witness, all of whom testified that they were present and heard the conversation between the parties. The plaintiff admitted upon his cross-examination that he went to defendant’s shop at the time stated; that his business there was to see if the defendant “ would not allow him more on the contract,” and that he could not recollect what was said at the time, although he denied that he insisted on fifty dollars more for performing the contract on his part.

The evidence so clearly preponderates in favor of the contention of the defendant that the judgment should he reversed.

MacLean and Leventritt, JL, concur.

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