Davis v. Jacobson

115 N.Y.S. 133

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 5, 1909
• Status: Published

Opinion

PER CURIAM.

It is noted by the learned trial justice that the defendants did not produce, on the latest trial of this action for procuring two lessees for certain premises, two witnesses whom' they ■had at the first. Be, however, the defendants’ witnesses fewer, or. more, or none at all, the plaintiff had the same obligation to prove his alleged cause of action, and this his evidence did not accomplish. No lease was executed between the parties, nor could a skillful scrivener, taking all said by and for the plaintiff, draw a lease and say that it contained the terms and particulars agreed upon by the parties. Sherry v. Proal, 125 App. Div. 508, 109 N. Y, Supp. 1008. Assuming the persons whom the plaintiff produced were willing to become lessees, they offered no evidence to show they were able to pay the rentals. Nothing said of their occupations or resources or expectations indicates their need of such premises, or their ability to pay for them. It is more than doubtful whether they could scrape together enough to pay the deposit.. If they could do that only, it would be only for speculative hawking, disparaging the property. There is no proof of the value of the services professed to have been rendered, save the statement of the plaintiff himself, who, asserting he had been in the real estate business 10 or 11 years, could only say of sales; “I sold one property. I made $4,000 commission”—and of leasing could only tell of one parcel he had leased and received commission on, 6 or 7 years ago. That was no proof at all. The judgment should be reversed.

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