
    John Van Orden et al., Respondents, v. Albert C. Morris et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1897.)
    1. Brokers — Commissions.
    A broker, employed to procure a loan, earns his commission when he produces a competent party as a proposed lender who is ready and willing to make the loan upon terms acceptable to his principal.
    2. Same — Variance.
    The complaint, in an action by a broker for commissions for procuring a loan, alleged that plaintiffs had procured a person to make the loan and introduced him to the defendants and said defendants obtained the loan on bond and mortgage. The proof showed that such person was procured and was able and willing to make the loan, but that defendants withdrew from the transaction with such person, on paying him for his expense in searching, they having obtained the loan elsewhere. Held, that the variance was not material, as plaintiffs’ duty was performed when the lender was procured.
    3. Trial — Defect in proof cured by subsequent evidence.
    Evidence introduced by either party after denial of a motion to dismiss for insufficiency cures the defect in proof then existing.
    4. Same — Striking out evidence.
    A refusal to strike out testimony derived from. books, 'if erroneous, is-harmless where the same facts are proved by competent testimony.
    Van Orden v. Morris, 18 Mise. Rep. 579, affirmed.
    Appeal from affirmance by the General Term of the City Gourfc of New York of a judgment entered upon a verdict in favor of the plaintiffs.
    Action for brokers’ commissions- alleged to have been earned by plaintiffs in the procuring of a loan to defendants.
    George W. Miller, for appellants.
    Joseph M. Williams, for respondents.
   Bischoff, J.

That there was sufficient evidence in this case to support a recovery by the plaintiffs cannot be questioned. The proof shows their employment by -the ■ defendants to procure the loan in question, the production through their efforts of _a person thoroughly able- and willing to make the loan, upon the security offered, and the defendants’ unexcused and arbitrary refusal to complete the transaction after the plaintiffs’ services .had been thus fully performed.

It is claimed by the appellants, however, that there was-, in effect, a failure of proof because of a variance between the allegations of the complaint and the evidence given to sustain them, and that, while the General Term, by ■ its order of affirmance, directed that the pleadings and proof be conformed, the order, so far, was erroneous, the variance being material and the result prejudicial to appellants.

The complaint alleged the fact that' the plaintiffs were engaged ■in business as brokers in procuring loans; that application for the loan in question was 'made to them by defendants and that they applied'in behalf of defendants to. one Frederick A. Snow, for the loan; that Snow granted the application and that “ the plaintiffs, informed the defendants that they had procured the same and then and there introduced them to the said Frederick A. Snow, and the said defendants obtained the sáid loan on bond and mortgage,” etc.

. The variance, and -so the- failure of proof relied upon by the appellants, is found in the fact that the loan was never actually made, as alleged, but that the defendants withdrew from the transaction with Snow, with the latter’s consent, .upon the payment of a fee of $150 for services in searching the title to the property, ,Snow was quité prepared to make the loan and the defendants’ withdrawal, according to ample evidence, was based upon no fault of the plaintiffs in the performance of the services for which they were retained, but because the defendants had subsequently secured the loan elsewhere.

This appears to us to have been a clear case for the exercise by the General Term of its power to disregard defects, not affecting the merits, and to conform the pleadings to the facts proved where the complaint or defense is not thereby substantially changed. Code Oiv. Proc., § 723; Baylies New Trials & Appeals, 166, and cases there collated.

.The plaintiffs did not in this instance attempt to prove an excuse for nonperformance under an allegation of performance) for they had performed all that was expected from them, according ■ to the evidence, when they produced this competent party as a proposed lender, ready and willing to make the loan upon terms acceptable to the defendants. Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 383; Weinstein v. Golding, 18 Misc. Rep. 63.

The allegation that the -loan had been made dispensed, it is true, with the necessity of alleging Snow’s readiness and ability to make it, but the cause of action remains the same, whatever the facts showing the plaintiffs’ success in procuring a lender may have been.

The claim was based upon the plaintiffs’ performance of their contract to procure a loan as requested by the defendants and this claim was not changed, in substance, by the amendment allowed, nor was any new ground of liability thus presented. The liability arose out of the plaintiffs’ successful procurement of the proposed lender and the fact of their success remains unaffected.

The case of Springer v. Westcott, 87 Hun, 190, is not analogous to this and does not support the appellants’ contention. There the matter had to do with the imposition of liability upon a ground totally distinct from the basis of the cause of action alleged, and moreover, the defendant, had consistently, throughout the trial, endeavored to confine the proof to .the issue, by objections to evidence beyond it.

Here, as has been said, the cause of action was not altered, and it is further to be ■ noted that all the evidence upon which the amendment was based was received in the case without any objection to its relevancy or materiality. Frear v. Sweet, 118 N. Y. 454. Evidence introduced by either party after denial of a motion to dismiss for insufficiency cured the defect in proof then existing. Meyers v. Cohn, 4 Misc. Rep. 185, and cases cited.

We pass to an examination of the one exception, taken to the court’s ruling upon evidence, which the appellants present to us.

Hyatt, the partner of Snow, testified to the facts surrounding the termination of the loan transaction between Snow and the defendants, and his testimony was that there had been a compromise agreement ” whereby the defendants were released from any obligations touching their application for the loan, through the plaintiffs, upon the payment of $150, as a fee for services performed by Snow and Hyatt in the matter, it being the defendants’ intention to conclude the loan with other parties, although. Snow was prepared to make the loan himself upon the terms which the plaintiffs had been engaged to secure.

■ On cross-examination it was made to appear that Hyatt’s information as to the fact of this payment was derived solely from the hooks of the firm, and, accordingly, the defendants’ counsel moved that “ what he (Hyatt) testified from books ” be stricken-from the record, and the motion was denied under exception.

We may concede that the form of the objection properly presented the point that the evidence was hearsay, or was not the' best evidence, also that the motion, under the circumstances, did not appeal to the discretion of the court, hut it is clear that no prejudice resulted to the ■ appellants, since the fact that a payment of $150 had been made by them to Snow was not disputed.

Defendants’ counsel brought out the fact of this payment elsewhere upon the trial, and while the circumstances surrounding the payment were claimed to have been different from Hyatt’s account of them, the latter’s incompetency as a witness was only shown to have extended to the fact of the payment itself.

If Hyatt’s knowledge of the surrounding circumstances as well as of the payment was derived only from the books, that fact should have been clearly brought out by the cross-examination upon which the motion was based, but it was not, the answers to defendants’ counsel, as reasonably construed, having touched only upon the matter of the payment.

The judgment should he affirmed,, with costs.

Daly, P. I., and MoAdam, J., concur.

Judgment affirmed, with costs.  