
    Frederick Schuster, Respondent, v. August Ganzenmuller, Appellant.
    (Supreme Court, Appellate Term,
    September, 1896.)
    1. Appeal — Decision on the facts not reviewable by the Appellate Term.
    An affirmance by the General Term of the City Court is binding on the Appellate. Term as to the facts.
    
      2. Witness — Examination to lay ground for impeachment.
    ' A witness may properly be asked questions which tend to bring out the fact that he has made statements out of court contradictory. of his testimony as to material facts, or in ease of his denial thereof to lay the foundation for his impeachment, and the exclusion thereof is error. <
    Schuster v. Ganzenmuller, 17 Mise. Rep. 308, reversed.
    Appeal from affirmance by the General Term of the City Court of ¡New York of a judgment rendered in favor of the plaintiff.
    L. J. Morrison, for respondent.
    John Fennel, for appellant.
   Bischoff, J.

This is an action for brokers’ commissions, claimed upon a sale of. real estate' owned by the defendant and the sole issue litigated at the trial was whether or not the plaintiff was the procuring cause of the sale, it having been admitted that should he establish this fact a recovery should result.

There was evidence, in support of the conclusion reached by the jury that the plaintiff was the procuring cause; therefore, the court properly refused to dismiss the complaint, and, since the judgment was affirmed by the General Term, we must now hold the case to have been correctly determined upon the facts. Carney v. Reilly, handed down herewith.

However, while the exceptions taken to rulings upon evidence and upon requests to charge are in most instances found to be without merit, one appears which we think must call for a new trial.

This exception was taken to the exclusion of a question asked the plaintiffs witness, Volkenning (the purchaser's agent through whom the transaction was conducted with the defendant), on cross-examination, as follows: “ Q. Do you remember, at the time you made the contract for this property, two questions were asked of you, one relating to your power to sign for your wife, and the other question relating to whether or not there was a broker in the sale?”

It is claimed that the object of this question was to prove a statement made out of court by the witness contrary to his own testimony, in so far as such testimony tended to show that the sale was induced by the plaintiffs efforts, and we think that it should have been allowed.

The question was not misleading in its form and the appellant' was entitled to bring out the fact from this witness, if he could, that the latter had made a statement out of court in contradiction of his testimony at the trial, or, if the witness denied making the' statement, to thus lay the foundation for his impeachment by other witnesses upon the point'.

The issue with regard to which this statement was claimed to have been made was certainly material; it was the sole issue before the court, and the testimony of this witness Volkenning in favor of the plaintiff was the principal evidence in support of the case.

We conclude that the ruling was clearly to the prejudice of the appellant, and that there should be a new trial of the cause.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Daly, P. J., and McAdam, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  