
    Gennaro Onorato vs. Antonio Toti
    No. 45820.
    December 8, 1931.
   FROST, J.

Heard on defendant’s motion for new trial after verdict for plaintiff for $174.90.

This was an action to recover a broker’s commission of $100 on a sale of real estate in 1919.

The plaintiff testified that he had a conversation with the defendant, whom he had known for some time, in which the latter said that he would go fifty-fifty with him, if he, Onorato. would find someone to buy a house which he had to sell. Both were in the real estate business and at the time of the alleged conversation, Toti had the exclusive agency for a limited time, for the purpose of sale, of a house on Knight Street belonging to one Yatman. Onorato testified further that he interested a man named Scalzi in the property which was for sale; that he went through the house with -Scalzi and that he introduced the latter to Toti; that in June of that year the house was sold to 'Scalzi. Scalzi testified and his testimony reasonably supported that of Onorato in essential particulars.

For plaintiff: William 6. Troy.

For defendant: Flynn & Mahoney.

The defendant admitted that he had been paid a commission of $206 on the sale of the house but denied absolutely that he had the conversation related by the plaintiff or that he had ever promised to give anything to Onorato in connection with the sale of this house. He denied that Onorato had anything to do with the sale of the Yatman property but he did admit that Scalzi and Onorato came to his house* relative to the sale of the Yat-man property.

The story told by the plaintiff was not inherently improbable. There were some discrepancies which might be accounted for by reason of the lapse of twelve years since the sale of the property. It was very largely a question of the credibility of the witnesses who were seen and heard by the jury. There was evidence upon which to base the verdict that was returned and in the judgment of the Court it does substantial justice between the parties.

Defendant’s motion for a new trial must therefore be denied.  