
    Isidore Silvert, Respondent, v. Louis Kommel, Appellant.
    First Department,
    May 6, 1910.
    Judgment — real estate broker — action for commissions — judgment in accordance with pleadings — evidence outside of issue — charge.
    Judgment must be rendered in accordance with the facts pleaded and proved.
    Where the complaint in an action by the assignee of a real estate broker for commissions is based on the theory that his assignor was employed by the owner of the property to procure a sale; and that the defendant, the purchaser, agreed that, if the broker would give him the particulars of property, he would • buy through him as broker so as to entitle him to commissions from the owner; that defendant, having obtained the particulars, púrchased without disclosing the broker’s part in the transaction and thereby prevented him from earning his commissions, a judgment based on evidence that the defendant promised to pay commissions if the broker should not get them from the seller will be reversed.
    It was error for the court to admit as part of the res gestae evidence of a conversation between defendant and the broker wherein the former said that he would pay the commissions if the seller did not do so, over an objection that the evidence was at variance with the complaint.
    It was error for the court to refuse to charge that the jury could not consider the evidence of such promise.
    Appeal by the defendant, Louis Kommel, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of October, 1909, upon the verdict of a jury, and also from an ordpr entered in said clerk’s office on the 22d day of October, 1909, denying the defendant’s motion for a new trial made upon'tile minutes.
    
      Isidor Cohn of counsel {Jacob I. Berman with him on the brief], for the appellant.
    
      Jacob Mamheim, for the respondent.
   Clarke, J.:

The plaintiff is the assignee of one Fonrow. The complaint alleges that in August, 1905, defendant requested Fonrow, a real estate agent and broker, to seek.out and call to the-attention of the defendant tenement houses which the owners might be' willing to sell, and to ascertain for him the asking price, mortgages, rental and description of such tenement houses for sale; that in consideration of the services of said Fonrow, to be rendered as aforesaid} the defendant promised and agreed that if he purchased any of' .such tenement houses brought to his attention by Fonrow, he would purchase such tenement houses, only through Fonrow as broker and thus enable Fonrow to earn the usual brokerage or commission ón the sale of real, estate; that in pursuance of the request and "said promise and agreement on the part of the defendant, Fonrow entered upon such employment and brought to the attention of the defendant two certain tenement houses; 417-41.9 East Twelfth street, in .the city of New York, and ascertained and communicated to the defendant a description of said premises as well as the mortgages thereon, the rental thereof .and the asking.price, and was ready,, willing and able and offered to .the defendant to do all things necessary as broker to bring about the sale of said premisesby-the owners thereof to the defendant; that the defendant failed and .refused to avail himself further of such services'of Fonrow in the purchase of said premises, but without his knowledge entered into negotiations with the owners and did purchase the same at the consideration ór purchase price of $91,500, without apprising the owners of said premises of the fact that the same had been brought to his attention by the plaintiff, and;.thereby procuring said premises at a net reduced price, from the fact .that siicli owners were not to pay "any commission on the sale of such premises ; that the owners- of said premises had employed the said Fonrow to.procure the salé thereof, and if the- defendant had' carried out his said promise and -agreement and had purchased said premises only through him as broker,Fonrow would* have earned from the owners of said premises on the sale .thereof"‘"'to the defendant the sum of "one per cent ón the amount of the purchase price, amounting to at least $925, the usual", and customary brokerage commission on the purchase and sale of yeal estate; and that through the acts aforesaid of the defendant 'Fonrow lost, the said sum,' which otherwise would have been earned by- him, and was damaged in the sum of at", least $9.25, for which judgment was demanded. The answer was a general denial.

The theory of the complaint is that Fonrow' was: employed by the owner of the property to procure a sale: that defendant agreed that if .Fonrow should.give him. the particulars of property which defendant desired to purchase, he would purchase only through Fonrow as broker and thus enable Fonrow to earn a commission from, the seller / that defendant bought without apprising the seller that Fonrow was the broker who had brought about the sale, and thereby Fonrow had suffered damage by having been prevented from earning his commission from the seller, and so had a cause of action for his damages.

The claim presented by the evidence was entirely different, namely, that defendant’s promise was that if Fonrow should not get a commission from the seller, defendant would pay it.

Fonrow testified that the defendant said to him: “ As, therefore, you are recommended to me by Mrs. Goldman, 1 will try' and give you a chance, but you should not get me any property from aiiy real estate office, as I wouldn’t deal with any real estate office. You should go out and get me some property direct from the owners, and you should get me the owner’s name. You should get me the whole particulars belonging, as the size of the -lot, the mortgages, the rental, the owner’s name, and you should bring it to me; and I will look it through, and in case I will like this property, or any of them that you will bring to me, and I will buy any of the property that you are bringing to me, and you will make the commission. And in case I will buy such property, and you will bring it to me, without you, and you will not get any commission from the other side, then I will pay you for commission.”

This was objected to upon the ground that it was at variance with the complaint; that there was no allegation in the complaint that defendant was to pay Fonrow any commission ; no allegation that he employed him, the only allegation being that the seller employed him. The court admitted the testimony as part of the res gestee. There was an exception, and then defendant’s counsel said : “ Will your honor do this then in your charge, if it should go to the jury, will you exclude this particular cause of action ? The Court: As I intimated already, the evidence is received not for the purpose of allowing the plaintiff to recover upon another cause of action, but the evidence is received because it is part and parcel of the. com versation which plaintiff claims resulted in his employment by the defendant.”

At the close of the case defendant’s counsel made this request: “ I ask your honor to take from the consideration of the jury that part of the testimony, with reference to that if he did not receive any commission from the seller that lie would pay it; and I ask your honor to charge the jury that they should not take that into consideration under any circumstances, because it is not a ground of complaint.” The court refused and defendant excepted.

The court, in its charge, repeated the testimony of the plaintiff : “I will buy only through you, and you will make, the commission. And in case I will buy such property, and you will bring it to me, without you, and you will not get any commission from the other side, then I will pay you for commission,” arid stated: “Upon that, "basis the plaintiff claims that because he was deprived of the opportunity of selling the property he lost the opportunity of earning the commission, and that, .under the special contract which was made, he, the plaintiff’s assignor, was entitled to.tlie sum of $915.” And he left the precise issue to be determined in these words : “ The burden is upon the plaintiff to prove by a. fair preponderance of the evidence that the defendant promised, and agreed that the plaintiff’s assignor should, if he purchased any property to which his attention was called by the plaintiff’s assignor, get his commission, and.that if he did not get his commission from the seller he, the defendant, would pay it. 1 repeat, the burden of praying such a contract, or anything similar to it, is upon the plaintiff * *

It- is clear that there was submitted to the jury, and they have rendered a verdict upon, a cause of action not stated in the complaint. In Brightson v. Claflin Co. (180 N. Y. 76) the court said: “We think that the plaintiff did not recover secundum allegata et probata, and that this rule was violated at the trial, since the evidence was received under the defendant’s objection. (Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420; Romeyn v. Sickles, 108 id. 650; Day v. Town of New Lots, 107 id. 148.) In these cases it was held that it is a fundamental rule that a judgment shall be secundum allegata et probata, and that any departure from that rule is certain- to produce surprise, confusion and injustice. It was said with much force that pleadings and a distinct issue, are essential in'every system of jurisprudence, and there can be-no orderly administration of justice without them. If a party can allege one cause of action-and then recover upon another his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.”

In Northern, v. Dutchess County Mut. Ins. Co. (177 N. Y. 73) the court said: In this case the plaintiff failed to prove the cause of action alleged, and the evidence tending to establish a different cause of action was objected to upon the ground that it was inadmissible under the pleadings and no amendment was asked for. In such a case, if the plaintiff fails to prove the cause of action set up in his com-' plaint and proper objections are made upon the trial, and no amendment of the pleading is asked for or ordered, a judgment in the plaintiff’s favor upon a cause of action not alleged cannot be sustained on appeal, nor after trial can the pleadings be conformed to the proof.”.

It seems clear that the evidence objected to was improperly admitted ; that it was error to refuse the request to charge alluded to, and that the case was submitted to the jury upon a theory inconsistent with the complaint and in violation of the fundamental rule stated in the cases cited.

We are also of the opinion that even upon the theory followed at the trial, over the objection of the defendant, the verdict was against the weight of evidence.

Fcr these reasons the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., Laughlin, Scott and Miller, JJ;, concurred.

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