
    Meyers v. Cohn.
    (New York Common Pleas
    General Term,
    June, 1893.)
    A guardian who employs a broker to effect a purchase of real estate is personally liable for his commissions.
    An exception taken to a denial of a motion for a new trial is not available on appeal from the City Court of Hew York to the Court of Common Pleas.
    Where the record does not disclose a motion for a dismissal of the complaint, or that a verdict be directed for defendant, when both sides rested, the court will assume that there was sufficient evidence to sustain a recovery by plaintiff.
    The Court of Common Pleas, on appeal from a judgment of affirmance by the General Term of the City Court, is precluded from considering the weight of the evidence.
    An exception to a denial of a motion to dismiss the complaint, made at the close of plaintiff’s direct evidence, is not available on appeal if any defect in the proof is cured by evidence adduced by either party.
    In an action to recover broker’s commissions on a sale of real estate, the facts in' evidence supported an inference that W. was authorized by defendant to employ plaintiff’s assignor in the purchase of the real estate. Held, that evidence of conversations of plaintiff’s assignor with W. concerning the subject-matter of his employment, was both relevant and material.
    The deed of the premises to defendant was properly admitted, it being relevant and material to the fact of defendant’s purchase.
    A witness for defendant was asked why the expression "brokerage, if any,” was put in the contract. Held, that an objection that the question called1 for a conclusion, and not facts, was properly sustained.
    Appeal from a judgment of the General Term of the Cjity Court of Hew York, which affirmed a judgment for plaintiff, entered upon a verdict in his favor.
    Action to recover the commissions of plaintiff’s assignor, a broker, employed as such by defendant in the purchase of real property.
    Edw., W. 8. Johnston, for plaintiff (respondent).
    
      Richard M. Henry, for defendant (appellant).
   Bisohoff, J.

Though in the purchase of the real property conveyed to her, as well as in the employment of plaintiff’s assignor, as broker, to' effect the purchase, defendant may have acted as the guardian of her infant children, she was none the less personally liable for the broker’s commissions. Douglass v. Leonard, 17 N. Y. Supp. 591. See, also, interesting note appended to Johnson v. Leman, 19 Am. St. Rep. 67.

An exception taken to the denial of a motion for a new trial is not available on appeal from the City Court of New York to this court. Grier v. Hazard, 39 N. Y. St. Repr. 74; Carroll v. O’Shea, 2 Misc. Rep. 437. We must assume that there .was sufficient evidence of every fact essential to plaintiff’s recovery because the record does not disclose a motion for dismissal of the complaint, or that a verdict be directed for defendant, when both parties rested, and an exception to the denial of either of such motions [Barrett v. Third Are. R. R. Co., 45 N. Y. 628; Schwinger v. Raymond, 105 id. 648); and we are precluded by the judgment of affirmance of the court below from any consideration of the weight of the evidence. Arnstein v. Haulenbeek, 16 Daly, 382; Smith v. Pryor, Id. 169 ; Rowe v. Comley, 11 id. 318. The motion made for dismissal of the complaint when the introduction of direct evidence for plaintiff was closed, and the exception taken to its denial, are not available for the assignment of error, because any defect in the proof then remaining was cured by evidence subsequently adduced by either party. Schenectady & Saratoga Plank Road Co. v. Thatcher, 11 N. Y. 102; Tiffany v. St. John, 65 id. 314, 317; Painton v. Worth. Cent. R. R. Co., 83 id. 7.

Three exceptions appear to the admission of evidence of conversations with one Wittekowski, in defendant’s absence. The facts in evidence, however, support an inference of Wittekowski’s authority from defendant to employ plaintiff’s assignor, and conversations with him concerning the subject-matter of the latter’s employment were both relevant and material. Another exception was taken to the admission in evidence of the deed of the premises to defendant. The deed was relevant and material to the fact of defendant’s purchase and so properly admitted. Defendant’s witness, Moeran, was asked on his direct-examination, “ Do you know why this expression was put in the contract, ‘ brokerage, if any ? ’ ” This called for the witness’ conclusion, not for the facts, and the objection to the question was upon that ground properly sustained. The contract executed by defendant for the purchase of the premises subsequently conveyed to her contained the following “ Brokerage, if any, to be paid by the party of the second part (defendant) ” and defendant’s witness, Meyers, was asked on his direct-examination, “ Tell us what occurred in reference to putting in that contract those words ‘brokerage, if any ? ’ ” We fail- to see the materiality of this question, or the testimony it sought to elicit. The contract spoken of was by defendant with a person other than plaintiffs assignor, ánd why they inserted the provision concerning the brokerage could not affect the question whether or not plaintiff’s assignor was employed by defendant, which was the question at issue. If the conversations of the persons present at the time of the execution of the contract were material to the question at issue on the trial it was incumbent upon defendant’s counsel to apprise the trial court of the grounds of the materiality. Trustees, etc., First Baptist Church v. Brooklyn Fire Ins. Co., 23 How. Pr. 448. This was not done. Two further exceptions remain, but as no ground was assigned for the objection to the evidence in either case, they are ineffectual for any purpose. Cruikshank v. Gordon, 118 N. Y. 178.

Judgment affirmed, with costs.

Bookstaveb and Peyob, JJ., concur.

Judgment affirmed.  