
    Mayer Landsberger, Resp’t, v. Kate Murray, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed November 27, 1893.)
    
    1. Appeal—Admissions.
    Where a party has expressly admitted a fact in court, it is harmless error to permit the adverse party to give evidence bearing upon such fact.
    2. Same—Change.
    In an action by a broker for his commissions, it is not error to refuse to, charge that the jury must find that defendant represented himself to be the owner of the premises, in order to entitle the plaintiff to a verdict.
    
      Appeal by defendant from judgment on a verdict and order denying new trial.
    
      Davis & Kaufman, for plf’t-resp’t; Norwood & Coggeshall, for def’tapp’lt.'
   Van Wycic, P. J.

The plaintiff, a real estate broker, sues for commission for procuring a purchaser of defendant’s two houses and lots, at her request. The case was properly submitted to the jury and their verdict returned for plaintiff is not contrary to the evidence, nor against the weight of evidence. Now as to defendant’s exceptions. It was immaterialal who generally took title, the issue here was, who agreed to take title under the instruments of February 10th and March 20th. Although it appears by the record that the objection to the question at folio 54 was sustained, nevertheless, it also appears that it was fully answered. It was harmless error in this action, by the defendant's broker, to allow the purchasers named in the above instruments to state that they had prepared and filed plans and specifications as tending to show their willingness to carry out the agreements of these instruments, in view of the fact that defendant had at folio 104 expressly admitted, “ that they were able to buy the property and willing to do it.” It was not error for the judge to refuse to charge that, “the jury must find that defendant represented herself to be the owner of the premises to entitle the plaintiff to a verdict.” What matters it whether she represented herself as the owner of these two houses and lots, or not ? The issue was whether she had employed defendant to negotiate a sale of these two particular houses, and if so, whether he had successfully done so by producing by his efforts, a purchaser able and willing to buy them at her price, and upon the agreed terms. The evidence shows that he did, and the jury so found. Moreover, she was, at the time of the employment and agreement to sell, the actual owner in fee of one of the houses, and held the fee to three-fourths of the other one, jointly with a daughter who was four months under age, and from .whom she also held a deed of her interest.

The judgment and order must be affirmed with costs.

McCarthy, J., concurs.  