
    Van Doren v. Jelliffe.
    (New York Common Pleas—General Term,
    November, 1892.)
    In an action to recover commissions for effecting the sale of a farm in New Jersey, plaintiff testified that he had been engaged in business as a real estate broker for twenty-six years, and during all hut four in New York city; that he was acquainted with the customary commissions of brokers on the sale of real estate, and stated what it was. No preliminary examination of the witness was demanded. Held, that an objection to the competency of the witness was properly overruled.
    Plaintiff on cross-examination was asked concerning payments made to him by the purchaser of the farm, and answered that they were made for advertisements. Held, that the answer was responsive, and a motion to strike it out was properly denied.
    In an action upon an assigned claim, plaintiff is not obliged to anticipate the defense that he was not the real party in interest by an allegation in the complaint of the fact of the assignment by and reassignment of tho claim to him before suit brought, but he may show the fact on the trial.
    Evidence that defendant and the purchaser, before the contract for the sale of the farm was executed in New York city, contemplated its execution elsewhere, was immaterial and properly excluded.
    Appeal from judgment of the General Term of the City Court affirming a judgment for plaintiff, entered upon the verdict of a jury, and affirming an order denying defendant’s motion for a new trial.
    Action by Garrett V. Van Doren to recover for services as a real estate broker, in effecting the sale of a farm in New Jersey belonging to the defendant Taylor Jelliffe, the defenses being a denial that the services were performed, an averment that plaintiff was not the real party in interest, and that the contract of employment was void because oral, under a provision of the laws of the state of New Jersey requiring such contracts to be in writing.
    The trial justice charged the jury as follows:
    
      “ Gentlemen of the Jury—This is an action between the plaintiff and the defendant to recover commissions for the sale of a parcel of land in New Jersey. The plaintiff claims that in the beginning of March conversations were had between him and the defendant by which the defendant suggested to him and placed in his charge the sale of this particular property, saying first that he wanted $30,000; and there is some discussion afterwards in regard to $25,000, and finally that the negotiations proceeded with a man named "Winchester, until finally, without his being present, a sale was effected between Winchester and the defendant for the sum of $23,000. That upon that he is entitled to the commission which is the ordinary commission for the sale of country property, to wit, two and a half per cent. It is a matter of calculation, and there is no dispute in this case as to the correctness of the calculation; that is, $575, with the interest, $40.43, making.a total of $615.43.
    “ The defendant on the other hand claims that the negotiations, whatever they were, between him and the plaintiff all took place in the state of New Jersey, and that a particular price was fixed and limited between him and the plaintiff, that is to say, that unless he secured $25,000 for the sale of this property, there should be no sale. The defendant also claims, and you are the judges of the testimony and must hear it in your mind, and if I am not correct you will correct me later in the jury room. The defendant contends also that at a certain conversation between him and the plaintiff, he asked the plaintiff where he was to secure his commission, and that the plaintiff’ then said to him ‘ never mind,’ if he secured the sale, he would look out for his commission.
    “ The defendant also claims that there was but little or no conversation in regard to the sale of the property, particularly as to this man being his representative. That at all the time he understood that the plaintiff was the agent of Mr. "Winchester.
    “ The defendant also claims that after the negotiations had proceeded for a long time, that is, the interviews between him and the plaintiff, these interviews dropped and suspended, and that some time after that Mr. Winchester came to him in person, and that the whole affair was negotiated between the two, Winchester and the defendant, at the price of $23,000.
    “Now, gentlemen, first, the law is very clear that if these parties residing in the state of New Jersey, the property being in New Jersey and the negotiations entirely in New Jersey, the plaintiff cannot recover as the evidence stands before you; hut if, on the other hand, the plaintiff and the defendant had a place of business in New York city and the negotiations were conducted there, and the whole transaction completed in New York, then the law is different, and the parties are entitled to the commissions as regulated, and to the rights as regulated by the laws of this state.
    “ The plaintiff cannot recover if he served both Mr. Winchester and the defendant, 'for the rule is very clear that one cannot serve two masters, cannot recover commissions from both. If you believe, then, from the evidence, that the plaintiff was acting as the agent of Mr. Winchester, that Mr. Winchester was to compensate him for his services in this transaction, then I charge you as a matter of law that the plaintiff cannot recover.
    “ You have the evidence before you, and I am not going to comment upon it.
    “ It is also very clear that if the plaintiff had introduced and continued the negotiations, and also those negotiations had suspended for a time, a reasonable time, and had been resumed again between the parties, and you believe from the evidence before you that the result of those negotiations, where the plaintiff was the inducing cause, was this sale, then I charge you again that the plaintiff is entitled to a verdict at your hands.
    “ I think I have charged you fully upon the law of this case, and clearly. It is a question of fact, and you are to settle it between the parties.
    “ It is the first charge I have made to a jury in this court, and I trust you gentlemen will help me out by settling the matter once for all.”
    Mr. Estes—The defendant requests the court to charge the jury, that if the defendant authorized the plaintiff to sell for $25,000, and limited him to that amount, the plaintiff would not be entitled to a commission unless he procured a purchaser ready and willing to pay that price.
    The Couet— That is subject to the qualification, of course, if he limited his price to $25,000, that is so, and I so charge you. [Defendant’s counsel excepted to refusal to charge as requested.]
    Mr. Estes —• I request your honor to charge the jury that the property for selling which this commission is claimed, and the contract of employment of plaintiff, if any, having been made in the state of New Jersey, where both the parties resided, and the sale of the property having been made there, the law of the state of New Jersey in regard to brokers’ commissions must govern, and if the plaintiff would not be entitled to recover for commissions in New Jersey, he cannot recover in this state.
    The Court — 1 decline to charge as requested; I think I have covered that question. [Defendant excepts.]
    Jubob No. 1 — Is it admitted that the contract was executed in New York?
    The Coubt — Yes; it is so admitted.
    Jubob No. 1 — Mr. Winchester and the defendant executed that contract in New York?
    The Coubt — Yes. [Defendant excepts.]
    Mr. Estes—I request your honor to charge the jury that there is no evidence that the contract for the employment of the plaintiff was made in the state of New York.
    The Coubt—I decline to so charge, that is a question for the jury on the evidence. [Defendant excepts.]
    Mr. Estes — I request your honor to charge the jury, on behalf of the defendant, that if the agreement was that the-plaintiff was not to have commission unless he sold the property at $25,000, then the plaintiff is not entitled to a commission and cannot succeed in this action.
    The Coubt — I have so charged.
    Mr. Estes — I request your honor to charge the jury that if the negotiations were broken off after the plaintiff commenced them and the defendant and the purchaser after that time himself opened negotiations and sold the property, that the plaintiff is not entitled to recover in this action.
    The Coubt-—-I so charge.
    Mr. Estes —• I request your honor to charge the jury that if the plaintiff agreed, or if it was understood by and between-him and the defendant, that the plaintiff was to look to the purchaser of the property for the commission he might be entitled to, then he cannot recover in this action, but a verdict should be rendered in favor of the defendant.
    The Coubt-—I so charge.
    Mr. Estes — I request your honor to charge the jury that if the plaintiff was acting as the agent of Winchester for compensation or commission to be paid by Winchester to him, and the fact that there was such arrangement between Winchester and the plaintiff, was not known to the defendant the plaintiff cannot recover in this action, but the defendant Jelliffe is entitled to a verdict, no cause of action.
    The Court—I so charge.
    Mr. Ester — I request your honor to charge the jury that the plaintiff cannot recover compensation from both the buyer and seller unless the defendant have knowledge that he was to receive from both sides and agrees to pay it.
    The Court — I so charge.
    Mr. Estes — The defendant takes exception to three propositions of your honors's charge: We except to that part of your honor’s charge where your honor stated that the case showed that the price was §30,000 in the first instance. That we except to in the first part of your honor’s charge. Secondly. We except to that part of your honor’s charge where you refer to the negotiations, saying that if the negotiations were entirely in New Jersey, and if the arrangement was completed here in New York, then they would be entitled to recover. To that part of this proposition in the charge, we except to that part, not being able to give the -precise language of the charge. Third. We except to those parts of the charge where your honor says something to the effect of the inducing cause. If the plaintiff introduced Winchester, and the negotiations had been suspended and afterwards they were resumed and the sale was made, the plaintiff would be entitled to recover. We except to that portion of the charge to which I refer. Defendant also excepts to each and every proposition, which was refused to be charged by the court.
    Upon the return of the jury a verdict for the plaintiff was handed in for §615.13.
    E M. Wight, for plaintiff (respondent).
    
      Benjamin Estes, for defendant (appellant),
   Bischoff, J.

Having omitted to move for a nonsuit or for the direction of a verdict in his favor, defendant has conceded that there was evidence sufficient to warrant the jury in finding a verdict for plaintiff (Barrett v. Third Ave. R. Co., 45 N. Y. 628, 632; Rowe v. Stevens, 44 How. Pr. 10; St. John v. Skinner, Id. 198; Caspar v. O’Brien, 47 id. 80), and without an exception to a refusal of either of such motions, we are without power on an appeal from a judgment of the City Court to inquire into the sufficiency of the evidence. Schwinger v. Raymond, 105 N. Y. 648; Walsh v. Schulz, 67 How. Pr. 186; McEteere v. Little, 8 Daly, 167; Rowe v. Comley, 11 id. 318; Smith v. Pryor, 16 id. 169.

For such reason we must assume the existence of every fact essential to the validity of the verdict and judgment, and may search only among the exceptions taken to the trial justice’s rulings in the admission and exclusion of evidence, and the charge and refusals to charge, for error requiring reversal.

The first exception appears to the overruling of defendant’s objection to the competency of plaintiff as an expert to testify to the customary commissions of real estate brokers. Plaintiff had previously testified that he had been engaged in business as a real estate broker for twenty-six years, and during all but four in the city of New York, and that he was acquainted with the customary commissions of brokers on the sale of real estate. Ho preliminary examination of the witness was demanded by defendant’s counsel, and the witness was allowed to state the customary commission. We perceive no error in this. Whether, or not, a witness is competent to give expert testimony is a preliminary question of fact, which must be determined by the trial justice, and his decision will not be reversed unless it appears to be against the evidence or wholly or mainly without any evidence to support it. Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 62. We think that in the present case the trial justice was justified in assuming from the witness’ twenty-six years of experience that lie knew the customary charges of real estate brokers.

On cross-examination, plaintiff was asked whether the claim in suit had ever been assigned. This was to substantiate the defense that plaintiff was not the real party in interest, and it was conceded that the alleged assignment was in writing. Plaintiff’s counsel objected on the ground that the paper itself was the best evidence of the fact, and this objection was sustained. The question was improper, since no foundation for the introduction of secondary evidence had been laid (Berg v. Carroll, 40 N. Y. St. Repr. 811); but assuming that the question should have been answered, the exception taken to its exclusion was waived by defendant’s subsequent introduction of plaintiff’s testimony to the fact of the assignment. Neil v. Thorn, 88 N. Y. 270, 277; Crosby v. Day, 81 id. 242.

On further cross-examination, plaintiff was asked concerning certain payments made to him by Winchester, the purchaser of defendant’s farm, in reply to which he stated that some of the payments were made for advertisements. The court properly denied defendant’s motion to strike that testimony-out as it was clearly responsive, and the same may be said of the witness’ testimony to the effect that he did not think that he told defendant that Winchester had accused him of not working true for him.”

The next exception was taken to the admission in evidence of a reassignment of the claim in suit to the plaintiff, before the commencement of this action. The ruling was a proper one. Plaintiff was not obliged to anticipate the defense that he was not the real party in interest by alleging in his complaint the fact of the assignment by, and the reassignment of the claim to him, and it was competent for him to meet the issue raised by the defense by showing the fact of the reassignment. Johnston v. American Writing Machine Co., 22 N. Y. St. Repr. 429, cited by appellant’s counsel, holds that it is error to allow evidence of a fact not in issue and so has no application, since under the provisions of the Code of Civil Procedure, section 522, the allegations of the answer respecting the defense that plaintiff was not the real party in interest, must be taken as controverted.

The objections of plaintiff’s counsel to the admission of evidence tending to shoAV that defendant and Winchester, before the contract for the sale of the farm was executed in the city of New York, contemplated the execution of it elsewhere, were proper, and the evidence excluded was so clearly immaterial as not to merit discussion.

Several exceptions were taken to the allowance of questions on defendant’s cross-examination, but in each instance the question related to matters previously testified to by defendant, and were, therefore, properly allowed.

Of the two exceptions taken on defendant’s re-cross-examination, one is invalid, because the question at which defendant’s objection was aimed had been answered, and no motion was made to have the answer stricken out; and the other, because the motion to strike out was properly granted, the answer not being responsive to the question of plaintiff’s counsel.

The exception taken on the further direct examination of plaintiff, and based on the objection that the questions, if allowed, would re-open the case, does not require reversal, since the allowance of further direct evidence was discretionary with the trial judge; and of the two remaining exceptions on plaintiff’s further direct examination, one is without force, because the ground of the objection is not stated (Cruikshank v. Gordon, 118 N. Y. 178, 108) and the other because the allowance of a leading question does not present ground for reversal, unless it appears that the appellant was prejudiced thereby. Walker v. Dunspaugh, 20 N. Y. 170.

There remain only the exceptions to the charge, and refusals to charge, but these also prove upon examination to be delusive to any hope of reversal.

The first exception to the alleged refusal to charge, is without any force, as the court charged precisely as requested. The second is equally invalid because the request assumed that the contract of employment was made in New Jersey, while it appeared in evidence from plaintiff’s testimony that the employment occurred in New York; and furthermore, because the matter included in the request had been previously correctly charged. The third request was properly refused, because it appeared from plaintiff’s testimony that he was employed to sell in New York, and the jury were not bound to believe defendant’s testimony to the contrary, as it was that of a party in interest. Elwood v. Western Union Tel. Co., 45 N. Y. 549; Gildersleeve v. Landon, 73 id. 609; Honegger v. Wettstein, 94 id. 252; Canajoharie Natl. Bank v. Diefendorf, 123 id. 191.

The first exception to the charge as made, was taken to the instruction that the contract for the sale of defendant’s farm to Winchester was executed in New York, and as this was conceded on the trial, no error can be predicted on the charge in this respect. The second exception is founded on the erroneous assumption that the court charged that plaintiff was employed to sell defendant’s farm for $30,000. What the court did charge, was that the plaintiff had so testified. This was true, and the exception was, therefore, without force. The next exception to the charge, was to the alleged instruction that the negotiations were had entirely in New Jersey, and that, if the arrangement was completed in New York, plaintiff was entitled to recover. The court did not so charge. The fourth and only remaining exception to the charge was taken to the instruction that “if the plaintiff introduced Winchester, and the negotiations had been suspended and afterward they were resumed and the sale was made, the plaintiff would be entitled to recover.” This proposition of law is unassailable (Levy v. Coogan, 16 Daly, 137), and the exception thereto without avail.

We observe that counsel for appellant urges on this appeal that the charge was erroneous, in that the court assumed that the commissions to which plaintiff would be entitled, if the jury found that he was employed to sell and that the sale was effected through his procurement, should be at the rate of two and one-half per centum. Upon examination, however, we observe that the charge in this respect was not excepted to, and we are, for that reason, without authority to review the alleged error complained of. The General Term of the court below could have granted a new trial for any error in the charge which was prejudicial to the appellant, though exception. was not taken thereto; but with respect to the City Court, our authority is no greater than that of the Court of Appeals with respect to this court, and we may only reverse when the error complained of is presented by proper exceptions. Schwinger v. Raymond, 105 N. Y. 648; Smith v. Pryor, 16 Daly, 169.

The judgment of the General Term of the court below should be affirmed, with costs.

Bookstaver, and. Pryor, JJ., concur.

Judgment affirmed.  