
    Anna S. Seguine, Appellant, v. George Spaeth, Respondent.
    (New York Common Pleas
    Additional General Term,
    November, 1895.)
    In an action upon an agreement to pay commissions which was signed only by defendant and did not purport to show the obligation- of the other party, the plaintiff was permitted to show that such obligation was merely to make such arrangements as would allow the work tp proceed thereon, while contradictory evidence offered by defendant was excluded. On appeal from a judgment in favor of thé defendant, held, that there was a mistrial.
    Appeal by the plaintiff from a decision of the justice of the Eleventh District Court, in favor of the defendant, rendered by the justice thereof without a jury.
    The nature of the action and material facts are stated in the opinion.
    
      Quincy, Wendel & . Robeson, for appellant.
    
      Arthur J. Westermayr, for respondent.
   Per Curiam.

The plaintiff sued to recover for certain commissions or payments claimed to have been earned by her assignor, John L. Douglas.- The first cause of action was for five per cent on $625 ; the second cause of action was for five per cent on $400, and the third cause of action for five per cent on $650.

With respect to the second and third causes of action there appears to have been a conflict of fact upon which we will not pass. But with regard to the first cause of action there was no such dispute. The agreement of the defendant to pay the plaintiff’s assignor was embodied in a written contract signed by the defendant. The writing was not signed by the plaintiff’s assignor, and does not purport to contain his obligation. It-was, therefore, proper to show upon the trial by parol what his undertaking was. Curtis v. Soltau, 16 Daly, 490; Tocci v. Arata, Id. 494; Wise v. Rosenblatt, Id. 496. He testifies: All I had to do under my contract • was to make such arrangements as would allow the work to proceed thereon; ” and this he reiterated afterwards. This testimony disposes of any' contention that there was ,no valid contract proved under the first cause of action because of any lack of consideration on the part of Douglas. The ground upon which the claim of the plaintiff upon this contract was disal- ' lowed does not appear from the record. If the plaintiff was not bound to do more than make arrangements so as to allpw the work to proceed, and he did so, he had performed the contract upon his part and was entitled to recover. If his obligation was to do. more, the defendant should have been permitted to show it. But he was not permitted to contradict plaintiff’s evidence on that point, for when he attempted : to' show what Douglas’ statement or promises were at the time the writing was signed such evidence was excluded. Upon a new trial any defense based upon the evidence can be considered. Theré .was evidently a mistrial upon this cause of action at least, and the whole judgment must be reversed and a new trial ordered, with costs to abide the event.

Present: Daly, Oh. J., and Giegebich, J.

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