
    Buckhout v. Berger.
    (City Court of Brooklyn—General Term,
    January, 1894.)
    In an action for services in procuring a capitalist ready and willing to erect a theater at a specified cost, and lease the same to defendant for a term of years at a rental of ten per cent of the cost, the court refused to charge that the plaintiff, if entitled to recover, could only recover, in the absence of a special agreement, the usual broker’s commissions on the rental. Held, no error, as the services claimed for included more than a mere rental of premises.
    ■ Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury for $650.
    
      Jerry A. Wernbery, for plaintiff (respondent).
    
      Horace Graves, for defendant (appellant).
   Per Curiam.

Plaintiff brought this action to recover on a qucmtum meruit for his services in procuring a capitalist ready and willing to erect a theater at a cost not exceeding $Y5,000, and to lease the same to the defendant for a term of years at a rental of ten per cent on the gross outlay. Plaintiff had e verdict.

The learned counsel for the defendant claims that it was error for the court to refuse to charge that plaintiff, if entitled to recover, could only recover, in the absence of any special agreement, the usual broker’s commissions on the rentals as the limit of his compensation. We think the court was right in refusing so to charge, because the services claimed for included more than the mere rental of premises; they included the finding of a capitalist willing to buy land in a specified section of the city, and to erect a theater on plans proposed by defendant, as well as the leasing thereof to defendant. What the services rendered by plaintiff were fairly worth was left to the jury on the evidence, and we think their verdict was a-just one.

The exception to the refusal to charge as requested at folio-129 was also untenable. There "was no evidence in the case-that would have justified the jury in finding any agreement that W illiams, the capitalist, was to pay plaintiff for his services ; further, the question as to whether defendant employed plaintiff was left to the jury to determine, and the court charged the jury that plaintiff could “ only recover on the theory that he was employed by Hr. Berger.”

We think that the judgment and order appealed from should be affirmed, with costs.

Present—- Osboene and Yau Wyck, JJ.

Judgment and order affirmed, with costs.  