
    FRIEDLAND v. GOODMAN.
    (Supreme Court, Appellate Term.
    May 15, 1908.)
    Bbokers—Action fob Commissions—Evidence. .
    In an action for broker’s commissions, evidence held insufficient to support a counterclaim for money advanced.
    Appeal from Municipal Court, Borough of Manhattan, Eighth District.
    Action by Harris Friedland against Morris Goodman for commissions. Judgment for defendant, and plaintiff appeals.
    Reversed, and new trial ordered.
    Argued before GIEDERSEEEVE> P. J., and GIEGERICH and GREENBAUM, JJ.
    Alexander Kahn, for appellant.
    Abraham B. Albert, for respondent.
   PER CURIAM.

Tbe plaintiff claimed commissions on sales of tobacco for the defendant. The issues were as to the amount of tobacco sold and the amount of the commissions paid. All material testimony on both sides was received without objection, and presents a sharp conflict. The conclusion of the trial judge that the plaintiff had failed to establish the cause of action alleged is warranted. There is no legal proof, however, to support the defendant’s counterclaim. The only testimony is: “We advanced him the $54.” This is not evidence of a loan, or of the terms or conditions under which it was made. So far as appears,.it may have been an advance on account of commissions to be earned. Schlesinger v. Burland, 42 Misc. Rep. 206, 85 N. Y. Supp. 350; N. W. Mut. v. Mooney, 108 N. Y. 118, 15 N. E. 303.

The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event.  