
    Jacob Greenfield, Respondent, v. Julius Kaplan, Appellant.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Brokers — Compensation — Performance of duty by broker—Bargain differing from terms of employment.
    Trial — Reception and exclusion of evidence — Rejection of evidence — Grounds.
    Where, in an action to recover commissions for procuring plaintiff’s wife as a lessee for defendant’s premises, the agreement shown was to pay commissions to plaintiff and his wife as brokers for renting the premises to a certain other person, a judgment in plaintiff’s favor is erroneous.
    Where defendant’s attorney, while testifying on behalf of his client, is' stopped by the court and his testimony ruled out as immaterial, a refusal to allow the witness to complete his testimony upon the ground that he took advantage of his position upon the witness’ stand, duly excepted to, calls for reversal of the judgment against his client.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, ninth district, borough of Manhattan, rendered in favor of the plaintiff.
    Aaronstamm & Chorosh, for appellant.
    H. Roth, for respondent.
   Davis, J.

The plaintiff sued to recover seventy-five dollars as commissions for procuring a lessee for defendant’s premises. The complaint alleges plaintiff’s employment, the compensation agreed upon 'and plaintiff’s performance of the terms of his employment by his procuring of one Rosie Greenfield as lessee. The trial justice gave judgment for the plaintiff holding that plaintiff did procure Rosie Greenfield as tenant; that she was able, ready and willing to make the lease on the terms proposed by the defendant, but that the defendant refused to make the lease and was the obstructing cause of the termination of the negotiations.

We think this judgment is clearly unsupported by the evidence. It appears that, on November 10, 1904, the defendant agreed to pay the plaintiff seventy-five dollars commissions, if he procured a tenant for defendant’s premises 231, 233 East One Hundred and Seventeenth street. This agreement is evidenced by a written memorandum to the effect that the commission is not to be paid if the lease is not executed. Thereafter the plaintiff, Rosie Greenfield, his wife, and a Mrs. Buxbaum, called upon the defendant. At this interview Rosie Greenfield proposed to Mrs. Buxbaum that they take the lease as partners. The defendant demurred to this and Mrs. Buxbaum also refused to accept that proposition. There was a long discussion between all the parties concerning the lease, as a result of which Mrs. Buxbaum was to become the lessee and Rosie Greenfield and her husband Jacob Greenfield were to be deemed the brokers in the transaction and were to receive one hundred dollars commission from Mrs. Buxbaum and seventy-five dollars commission from defendant. It is clear from this evidence that Rosie Greenfield was not the tenant proposed by plaintiff, Jacob Greenfield, and he should not be allowed to recover on the ground that he produced her as a tenant. If any proper tenant was produced, it was Mrs. Buxbaum; and for this service the plaintiff and his wife, Rosie Greenfield, were to he paid as brokers. This relation was created by a written instrument in evidence. Under these circumstances, we think the court, erred in holding that the plaintiff was entitled to recover commissions for having produced his wife, Rosie Greenfield, as a tenant for the defendant’s premises. In the course of the trial the counsel for the defendant deemed it advisable to take the stand as a witness on behalf of his client. The court stopped the witness and ruled out as immaterial all the testimony given by him up to that point. The court said he could not permit the witness to go on; and when the witness asked permission to finish his testimony the court refused to let him do so, stating, as a ground for his refusal, that the witness took advantage when allowed to testify. The witness excepted to this ruling of the court. It may be that the witness had important testimony yet to give on behalf of his client when he was stopped by the court. The action of the court in this respect prevented a full and fair trial of the issues which, of itself, we think, would justify a reversal of the judgment.

Gildejrsleeve and Fitzgerald, JJ., concur.

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