
    Walter Myers, Resp’t, v. Robert J. Dean, App’lt.
    
      (New York Common Pleas, General Term
    
    
      Filed June 2, 1890.)
    
    Brokers — Commissions.
    Plaintiff was requested by the comptroller to bring him parties to make offers for property which was to be leased at public auction. Plaintiff brought defendant, who entered into a written agreement to take the property at $31,000, if no one bid higher, and who became the purchaser at the sale. The agreement provided that defendant should pay brokerage. Plaintiff testified that defendant had agreed to pay him his commissions if he would assist him, which defendant denied. Held, that the promise to pay brokerage contained in the agreement, coupled with the testimony was sufficient to take the case to the jury, and that their verdict in favor of plaintiff would not be disturbed.
    Same — Charge.
    A charge that if defendant stated to plaintiff, before the lease was obtained, that if he obtained the lease on his offer he would pay the commission plaintiff is entitled to recover, is not erroneous. Such charge does not mean that he stated that he would pay the commission as a gratuity if he obtained the lease, but that he would pay in consideration of plaintiff’s services.
    Same — Validity op agreement.
    Such a contract is not void as against public policy, it not appearing that plaintiff undertook to keep others away from the sale or that he in fact did so.
    Appeal from a judgment entered on the verdict of a jury at I'ial term, in plaintiff’s favor, and from an order denying a new rial.
    
      Hatch & Warren, for app’lt; P. Q. Hclcerson, for resp’t.
   Bookstaver, J.

This action is brought to recover broker’s bmmissions in negotiating a lease of the property bounded by West, leade, Washington and Duane streets in this city. The comptroller id charge of the property to rent on behalf of the city. The laws Iquire that all leases of this kind shall'be at public auction to the Ighest bidder. Before exposing such leases for sale, however, it Is been usual, and we think quite necessary, for the officer having le matter in charge to obtain what he thinks a reasonable offer rich the party desiring the property will make as an upset bid for le same, otherwise it might frequently happen that the property mid either realize less than its value, or have to be withdrawn bm the sale. According to plaintiff’s testimony, the comptroller [shed the plaintiff to bring parties to him, and to procure offers the property in question. Notices were posted on the propfcy stating it was to lease. Plaintiff endeavored to get various Irsons to make offers, some of whom did, but their propositions lire refused by the comptroller, because he thought them too Plaintiff saw the defendant, talked to him about the proply, showed him a diagram of it, told him how much the' complller asked, informed the comptroller that he had a customer in r. Dean before the latter saw him. Previous to that time, as jiintifif testified, the defendant had agreed to pay him his comission if he would assist in obtaining the property. It was known to both the city would pay none. Plaintiff negotiated with the comptroller about the price, and had, as he testified, several interviews with him about the matter. On the 2d of November. 1888, plaintiff and defendant met by appointment at the comp; troller’s office, talked over the terms, and finally the defendant agreed to take the property on a lease for ten years at an annual rental of $31,000, provided no one bid higher at the auction sale. Y/hereupon the proposal was reduced to writing, and it contained a clause that the defendant would pay brokerage. The public sale afterwards took place, and the defendant became the pur chaser. Defendant denied that he ever agreed to pay brokerage or that plaintiff rendered any services in the matter, or was enti tied to any commissions, and claimed that the clause as to broker age was only inserted in the proposal to save the city from anj claim for it

At the close of the plaintiff’s case, defendant moved for a dis missal of the complaint on the ground that defendant’s promisi to pay brokerage contained in the written paper was. void ant nudum pactum; so it would have been, had it stood alone, bu coupled with the testimony, we think there was sufficient con sideration established, provided the jury believed plaintiff’s evi dence. He also moved to dismiss the complaint on the groum that no contract or employment had been proved, but we thin' the testimony was sufficient to warrant the submission of tho question to the jury.

It was sent to the jury, and they found a verdict for the plainti: for $3,063.33. The evidence is conflicting, and we cannot sa that the preponderance in defendant’s favor is so great as to wa: rant us in setting it aside, even if defendant had made that on of the grounds for so doing in his motion for a new trial.

No exception was taken to the judge’s charge as original! made. At its close, plaintiff’s counsel asked the court to chaig “ that if the jury believe that Mr. Dean stated to Mr. Myer before the lease was obtained, that if he obtained the lease on h offer that he would pay the commission, that then the plaintiff entitled to recover,” which it did, and defendant took an exce] tian. The charge must be read as a whole, and the portion ez cepted to does not mean, as plaintiff contends, that Mr. Dean ; any time stated to the plaintiff he would pay him a commissic as a gratuity if he obtained the lease. But we think it meal that in consideration of plaintiff’s services he would pay the con mission, and in this light it-was not error.

. The exception to the admission of expert evidence as to broke age was not well taken. It was admissible under the allegatioi of the complaint, and was relevant to the issues.

The question as to the legal effect of the written proposal w: properly excluded. It called for a conclusion of law, and not ft any fact.

Nor was the contract void as against public policy. There nothing in the evidence from which an inference can be dray that the plaintiff undertook to keep others away from the sale < from bidding or purchasing at the same, or that he, in fact, did s The whole agreement, if made, was completed when the written proposal was submitted to the comptroller, provided no one bid. ngher at the auction sale, and there was no bargaining between he parties looking to keeping any one away from that sale.

The judgment should, therefore, be affirmed, with costs.

Larremore, Ch. J., concurs.  