
    Louis T. Duryea et al., App’lts, v. William C. Vosburgh, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    1. Brokers—Action for moneys retained by—Evidence.
    In an action against an agent alleged to have" been employed by plaintiffs to purchase an interest in a business to recover the difference between the amount paid by plaintiffs and that for which defendant purchased the interest and which he retained, where defendant claims that he sold the interest to plaintiffs for the owner, under an agreement that he should have that sum for his services, it is proper to show on cross-examination of one of the plaintiffs that he was informed by a calculator that the interest was worth more than they paid for it.
    2. Same.
    In such an action it is proper to ask defendant for whom he acted. The question does not call for an opinion, but for a fact.
    3. Same—New trial—Newly discovered evidence.
    Evidence of admissions by defendant that he had sold the interest to plaintiffs for a greater amount than he paid for it is not important in such a case, as it is not controlling on the question as to whom defendant was acting for, and cannot be made the basis for a new trial on the ground of newly discovered evidence.
    Appeal from judgment for defendant, entered on verdict and from order denying motion for a new trial on the minutes, and also from order denying motion for a new trial on the ground of newly discovered evidence.
    
      O. N. & F. T. Payne (Herman H. Shook and Geo. G. Reynolds, of counsel), for app’lts; B. F. Tracy and D. W. Northup, for resp’t.
   Barnard, P. J.

The issue in this case was fairly tried. The plaintiffs aver that the defendant was employed or undertook to obtain the lowest price for which the interest of Edwin S. Peck in the partnership of N". G. Yosburgh & Go. could be bought by the plaintiffs. That defendant bought the interest for $6,000 less than the sum which plaintiffs paid for the interest and kept the $6,000 himself. The defendant says that he sold to plaintiffs for Peck, and under an agreement with Peck that he should have $6,000 for his services and also for his consent that plaintiffs should be admitted as partners in the firm. The testimony of the parties to the transaction differs as widely as the averments in the pleadings. The two Duryeas, plaintiffs, and their deceased brothers and Peck testify in favor of the plaintiffs. _ The defendant denies these statements, and gives evidence tending to-support his claim. • Evidence was given tending to impeach the. general character of Peck and also to support his character.

The charge was fair, and left the precise issue to the jury. There was very little evidence of much weight outside of the evidence of the parties in support of the claim of either party» There was no error committed on the trial It was competent on cross-examination of Louis T. Duryea to show that he was informed by a calculator that what he was buying was worth $52,000. The introduction of the agreement, Ex. C., in respect to the formation of an incorporation to take the title after the plaintiffs purchased, even if immaterial, hurt no one, and the admission is insufficient to reverse a judgment upon.

The real value of the property was important in determining the question presented. It. was proper to ask the direct question of Yosburgh for whom he acted. It was not an opinion, but a fact which was called for. If the ruling was not cured by the subsequent rejection of the question, it must be upheld as a proper question. Collins v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 243; 14 St. Rep., 783.

There was no error in the charge. It was not wrong for defendant to agree with Peck fora compensation of $6,000 if he sold the interest It was wrong to deduct $6,000 from the price, if the defendant was acting in the transaction for plaintiffs. There can be no mistake in the fact that the jury were told the precise issue and where the wrong consisted. If the price was $51,750 and the defendant was acting for plaintiffs and he paid but $45,750 to Peck, the plaintiffs were entitled to recover and the jury were so instructed. The verdict negatives the fact and establishes the contrary fact, that defendant was acting for Peck only, under an agreement with him for the compensation.

The motion for a new trial on the ground of newly discovered evidence was properly denied. It rests entirely on the affidavit of John C. Cassidy. He says that defendant told him that he had bought out Peck for $45,000 and had sold to plaintiffs for $51,000. Cassidy makes an affidavit for defendant that he told the fact to plaintiffs or one of them soon after. In view of -the facts proven on the trial the evidence itself is not very important. It is not very controlling upon the question as to whom the defendant was acting for. The amount he received is admitted by the defendant. The issue was whether Peck agreed with defendant to give him all he could get over $45,000 and whether defendant was free from any duty in respect to the purchase which he owed to the plaintiffs whereby he was to return the $6,000 to them. The issues have-been passed upon and the finding should bind the appellate court. No new light will be .added by the testimony of Cassidy.

The judgment and order denying new trial on the ground of newly discovered evidence should all be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.  