
    Morris A. Myers, Resp’t, v. Annie Cohen, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed June 5, 1893.)
    
    1. Brokers—Commissions—Evidence.
    In an action to recover the commissions of plaintiff’s assignor, a broker, employed as such by defendant in the purchase of real property, the deed to defendant of the premises purchased is admissible in evidence, being relevant and material to the fact of defendant’s purchase.
    3. Same.
    In such case, defendant’s witness was asked, on his direct examination: “ Do you know why this expression was put in the contract ‘ Brokerage, if any ’ ? ” Held, that the question called for the witness’ conclusion, and the objection to the question upon that ground was properly sustained.
    3. Same.
    The provisions inserted in the contract of sale by defendant and the vendor as to who should pay the brokerage could not affect the question whether or not plaintiff’s assignor was employed by defendant, and questions thereon are properly excluded.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for plaintiff entered upon a verdict in his favor.
    Action to recover the commissions of plaintiff’s assignor, a broker, employed as such by defendant in the purchase of real property.
    
      Edw. W. S. Johnston, for resp’t; Richard M. Henry, for app’lt.
    
      
       Affirming 51 St. Rep., 494.
    
   Bischoff, J.

—Though inthe purchase of the real conveyed to her, as well as in the employment of plaintiff’s assignor, as broker, to effect the purchase, defendant may have acted as the guardian of her infant children, she was none the less personally liable for the broker's commissions. Douglass v. Leonard, Com. Pl. Febr., 1892, 44 St. Rep., 293 ; see also interesting note appended to Johnson v. Leman, 19 Am. St., 67.

An exception taken to the denial of a motion for a new trial is not available on appeal from the city court of New York to this court. Grier v. Hazard & Co., 39 St. Rep., 74; Carroll v. O'Shea, 51 id., 579. We must assume that there was sufficient evidence of every fact essential to plaintiff’s recovery because the record does not disclose a motion for dismissal of the complaint, or that a verdict be directed for defendant, when both parties rested, and an exception to the denial of either of such motions, Barrett v. Third Ave. R. R. Co., 45 N. Y., 628; Schwinger v. Raymond et al., 105 id., 648; 7 St. Rep., 544, and we are precluded by the judgment of affirmance of the court below from any consideration of the weight of the evidence. Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep., 297; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553 ; Rowe v. Comley, 11 Daly, 318. The motion made for dismissal of the complaint when the introduction of direct evidence for plaintiff was closed, and the exception taken to its denial, are not available for the assignment of error, because any defect in the proof then remaining was cured by evidence subsequently adduced by either party. S. & S. Plank Road Co. v. Thatcher, 11 N. Y., 102; Tiffany v. St. John, 65 id., 314, 317; Painton v. North. Cent. R. Co., 83 id., 7.

Three exceptions appear to the admission of evidence of conversations with one Wittekowski in defendant’s absence. The facts in evidence, however, support an inference of Wittekowski’s authority from defendant to employ plaintiff’s assignor, and conversations with him concerning the subject matter of the latter’s employment were both relevant and material. Another exception was taken to the admission in evidence of the deed of the premises to defendant. The deed was relevant and material to the fact of defendant’s purchase, and so properly admitted. Defendant’s witness Moeran was asked in his direct examination : Do you know why this expression was put in the contract 1 Brokerage, if any ?’ ” This called for the witness’ conclusion, not for the facts, and the objection to the question was upon that ground properly sustained. The contract executed by defendant for the purchase of the premises subsequently conveyed to her contained the following, “ Brokerage, if any, to be paid by the party of the second part,” defendant, and defendant’s witness Meyers was asked on his direct-examination: “ Tell us what occurred in reference to putting in that contract those words, 1 Brokerage, if any ?’ ” We fail to see the materiality of this question or the testimony it sought to elicit. The contract spoken of was by defendant with a person other than plaintiff’s assignor, and why they inserted the provision concerning the brokerage could not affect the question whether or not plaintiff’s assignor was employed by defendant, which was the question at issue. If the conversations of the persons present at the time of the execution of the contract were material to the question at issue on the trial it was incumbent upon defendant’s counsel to apprise the trial court of the grounds of the materiality. Trustees, etc., First Baptist Church v. Brooklyn Fire Ins. Co., 23 How. Pr., 448. This was not done. Two further •exceptions remain, but as no ground was assigned for the objection to the evidence in either case, they are ineffectual for any purpose. Cruikshank v. Gordon, 118 N. Y., 187; 28 St. Rep., 784

Judgment affirmed, with costs.

Bookstaver, and Pryor, JJ., concur.  