
    Harry C. Bryan, Respondent, v. Ole H. Olsen, Appellant.
    (Supreme Court, Appellate Term,
    June, 1897.)
    Broker’s commissions — A party cannot strike out Ms own evidence.
    Where a broker sues for commissions alleged to have been earned by procuring the defendant a loan upon his property, a motion, made by the defendant at the close of the case, to strike out all evidence of transactions had between the plaintiff and the lender, upon the ground that it is not connected with the defendant, is properly denied, where it appears that the motion, if granted, will strike out, not only testimony elicited by the plaintiff, but also other testimony adduced by the defendant himself.
    Appeal from judgment rendered by the' justice of the Tenth Judicial District Court in favor of the plaintiff. Action for brokers’ commissions.
    Daniel P. Mahoney, for appellant.
    Alfred B. Hall, Jr., for respondent.
   Bischoff, J.

This -action was brought to recover .commissions alleged to have been -earned by the plaintiff through his successful efforts in procuring a loan upon the defendant’s property at the latter’s request.

The amount of commissions due, if the plaintiff was - entitled to any recovery, was not in dispute and the justice has determined that the plaintiff was employed to procure'this loan and, did procure it.

We cannot discover any infirmity in the recovery since there was ample evidence to show an employment of plaintiff for this purpose by Anton Olsén, defendant’s brother, whose authority to bind the defendant in the matter of the loan was admitted by the latter upon his direct examination. Further, the record clearly bears out the fact' that the lender was procured solely through the plaintiff’s efforts.

It is true that this party, Mr. Todd, knew the defendant and his brother, but the application for a loan in this instance was made by the plaintiff, as broker, and but for this, it can well be inferred from the evidence, Todd would not have been brought into the transaction.

Eor the defendant it was claimed that the plaintiff was not employed to secure the loan; that he had sought the employment but the defendant refused to make an application through him and that negotiations, touching this loan, had been had with Todd by the defendant at a time prior to the plaintiff’s attempted connection with the matter.

All this, however, was opposed to the testimony of the plaintiff and of Todd, the latter being apparently a disinterested witness, and the justice was authorized to find, as he did, favorably to the plaintiff upon the facts. .

The appellant contends that the -motion as made at the close of the case to strike out “ what transpired between Todd and Bryan on the ground that it is immaterial, incompetent and not connected with the defendant,” was - erroneously denied, but the point is found to be without merit since the motion, as made, called, for the striking out of testimony elicited by the defendant’s counsel as well as that adduced for the plaintiff, and it would thus appear that the defendant had consented to the introduction of this proof.

Judgment affirmed, with costs.

Daly, P. J., and Bisohofp, J., concur.

Judgment affirmed, with costs.  