
    Shapiro v. McLaughlin.
    (New York Common Pleas—Additional General Term,
    December, 1893.)
    Plaintiff’s evidence tended to show that he was entitled to recover of defendants thirty-one dollars and twenty-five cents, agreed to be paid by defendants to him, being twenty-five per cent of defendants’ commissions on an application for a loan of money made by plaintiff on behalf of another. Defendant McL., the only witness sworn in his own behalf, denied that he ever agreed to pay any part of his commissions to plaintiff. Plaintiff had a ‘judgment for twenty dollars, damages, and three dollars and fifty cents, costs. Held, that the judgment was inconsistent with the proof and should be reversed.
    Appeal by the defendants from a judgment of the District Court in the city of New York for the fifth judicial district, .rendered upon a trial before the justice thereof without a jury.
    The opinion states the nature of the action and the material facts.
    
      Frederick L. Gilbert, for defendants (appellants).
    
      Grossman & Vorhaus, for plaintiff (respondent.
   Giegerich, J.

This action was brought to recover the sum of thirty-one dollars and twenty-five cents as a share of a certain •expected commission alleged to have been promised plaintiff by defendants. The defendants pleaded a general denial. The testimony of the plaintiff shows that the defendants promised to give him twenty-five per cent of their commissions in case they procured a loan for $25,000 upon certain real property situate in this city, the application for which was placed with defendants by the plaintiff in behalf of another; that the plaintiff was to receive nothing in case $26,000 was loaned; that $25,000 was loaned; that the amount earned by the defendants was $125, out of which the plaintiff should get thirty-one dollars and twenty-five cents, twenty-five per cent of said sum.' The defendant Arthur W. McLaughlin was the only witness called by the defendants; he denied that he ever agreed to pay the plaintiff any part of his commission on the loan in question. The justice rendered a verdict in favor of the plaintiff for twenty dollars, damages, besides three dollars and fifty cents, costs.

It is obvious that the judgment is not consistent with the proofs. Precisely a similar question arose in Fuld v. Kahn, 4 Misc. Rep. 600; 54 N. Y. St. Repr. 134, and this court decided that the recovery was not secundum allegata et probata.

Applying the principles of the decision in that case to the one before us, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Bischoff, J., concurs.

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