
    Charles Tange, Resp’t, v. The New York and New Jersey Investment Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 4, 1894.)
    
    Appeal—New trial.
    Where the jury disregard the instructions of the court and find a verdict without evidence to support it, a new trial will be granted.
    Appeal from a judgment of the district court in the city of New York for the first judicial district.
    
      Fromme Bros., for app’lt; J. Newton Williams, for resp’t.
   Bookstaver, P. J.

This action was brought to recover commissions claimed to have been earned by respondent as broker in effecting a sale of real estate and was tried by the court with a jury. From the evidence it seems that the respondent acted as agent for the appellants under a written contract by which he was to receive thirty per centum on all sales of real estate effected by him. The claim sued upon was for commissions on the sale of ten lots, five sold by appellants to one Linke, and five to one Reinhardt. On the trial no claim was made that these were effected by the respondent personally, but he claimed they were effected through his sub-agent one Zittsler. There is nothing in the evidence that in any way connects either him or Zittsler with the sale of the five lots to Reinhardt. On the other hand, the appellants proved by Reinhardt himself that he purchased his five lots' directly from the appellants, and that he never saw the respondent, nor was he induced to buy the lots through the efforts of Zittsler. While the charge of the court to the jury was fair and clear on the questions of fact raised by the testimony, it is manifest that the jury disregarded his instructions and found a verdict as to this part of the claim without evidence, to support it. As to the five lots sold to Linke, respondent does not claim that he sold them himself, but claims through his sub-agent, Zittsler. Zittsler’s testimony on the subject is very indefinite and shadowy. Besides it was directly contradicted by the testimony offered by defendant, and we therefore thind no injustice can be done in reversing the judgment entirely and directing a new trial, with costs to the appellants.

Bischoff, J., concurs.  