
    TANGE, Respondent, v. NEW YORK & N. J. INV. CO., Appellant.
    (Common Pleas of New York City and County, General Term.
    June 4, 1894.)
    Appeal from first district court. Action by Charles Tan¿e against the New York & New Jersey Investment Company. There was a judgment in favor of plaintiff. and defendant appeals. Reversed. Fromme Bros., for appellant. 1. Newton Williams, for respondent.
   BOOKSTAVER, J.

This action was brought to recover commissions claimed to have been earned by respondent as broker in effecting a sale of real estate, and was tried by the court with a jury. From the evidence it seems that the respondent acted- as agent for the appellant under a written contract by which he was to receive 30 per centum on all sales of real estate effected by him. The claim sued upon was for commissions on the sale of ten lots; five sold by appellant to one Linke, and five to one Reinhardt. On the trial no claim was made that these were effected by the respondent personally, but he claimed they were effected through his subagent, one Zittsler. There is nothing in the evidence that in any way connects either him or Zittsler with the sale of the five lots to Reinhardt. On the other hand, the appellant proved by Reinhardt himself that he purchased his five lots directly from the appellant, and that he never saw the respondent, nor was he induced to buy the lots through the efforts of Zittsler. While the charge of the court to the jury was fair and clear on the questions of fact raised by the testimony, it is manifest that the jury disregarded his instructions, and found a verdict as to this part of the claim without evidence to support it. As to the rive la's sold to Linke, respondent does not claim that he sold them himself, but claims through his subagent, Zittsler. ZIttsler’s testimony on the subject is very indefinite and shadowy. Besides, it was directly contradicted by the testimony offered by defendant, and we therefore think no injustice can be done in reversing the judgment entirely, and directing a new trial, with costs to the appellant.  