Gorelich v. Bronstein

Appellate Terms of the Supreme Court of New York

Gorelich v. Bronstein

123 Misc. 943, 206 N.Y.S. 522, 1924 N.Y. Misc. LEXIS 1220

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 11, 1924

StatusPublished

This text of 123 Misc. 943 (Gorelich v. Bronstein) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gorelich v. Bronstein, 123 Misc. 943, 206 N.Y.S. 522, 1924 N.Y. Misc. LEXIS 1220 (N.Y. Ct. App. 1924).

Pincite

Opinion

Per Curiam.

This appeal is based upon errors in the admission and exclusion of evidence. The plaintiff sued for broker’s commission on the sale of real estate. ¡Defendant assigns as the first error that the plaintiff was allowed over objection to testify that a son of the defendant received part of the commission paid to one Kurtz, another broker. This testimony was, however, in our opinion, material as showing a -scheme to defraud plaintiff. Since it was material to plaintiff’s case to show that another broker was paid, the amount of the payment and the manner of its division were a part of the transaction and incidental to the major proposition.

The next error assigned is in the refusal to charge that Fisher, the purchaser, and Kurtz, the broker, who had been paid, were disinterested witnesses. We find no error in the refusal in so far as it applies to Kurtz, but Fisher was clearly disinterested in the outcome of the action. Rheinfeldt v. Dahlman, 19 Misc. ¡Rep. 162. The only reason given by respondent for his claim that Fisher was interested is that he was a client of defendant’s attorney. That in no way involves a financial interest in the outcome of this litigation. It is to be noted that no exception was taken by appellant to the refusal to charge on this question.

Finally, and more seriously, the court, over appellant’s objection, excluded testimony involving conversations and acts of the broker, the purchaser and seller had in the absence of plaintiff. To this exception was taken. This testimony is said in Kehoe v. Jacobus, 188 App. Div. 931, to be part of the res gestee and competent as tending to prove defendant’s claim that the work was performed by another broker who has been paid.

For this error in excluding testimony the judgment must be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Gut and Bijur, JJ., concur; Mullan, J., votes to reverse upon the ground last stated.

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Per Curiam.

This appeal is based upon errors in the admission and exclusion of evidence. The plaintiff sued for broker’s commission on the sale of real estate. ¡Defendant assigns as the first error that the plaintiff was allowed over objection to testify that a son of the defendant received part of the commission paid to one Kurtz, another broker. This testimony was, however, in our opinion, material as showing a -scheme to defraud plaintiff. Since it was material to plaintiff’s case to show that another broker was paid, the amount of the payment and the manner of its division were a part of the transaction and incidental to the major proposition.

The next error assigned is in the refusal to charge that Fisher, the purchaser, and Kurtz, the broker, who had been paid, were disinterested witnesses. We find no error in the refusal in so far as it applies to Kurtz, but Fisher was clearly disinterested in the outcome of the action. Rheinfeldt v. Dahlman, 19 Misc. ¡Rep. 162. The only reason given by respondent for his claim that Fisher was interested is that he was a client of defendant’s attorney. That in no way involves a financial interest in the outcome of this litigation. It is to be noted that no exception was taken by appellant to the refusal to charge on this question.

Finally, and more seriously, the court, over appellant’s objection, excluded testimony involving conversations and acts of the broker, the purchaser and seller had in the absence of plaintiff. To this exception was taken. This testimony is said in Kehoe v. Jacobus, 188 App. Div. 931, to be part of the res gestee and competent as tending to prove defendant’s claim that the work was performed by another broker who has been paid.

For this error in excluding testimony the judgment must be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Gut and Bijur, JJ., concur; Mullan, J., votes to reverse upon the ground last stated.

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Bluebook (online)

123 Misc. 943, 206 N.Y.S. 522, 1924 N.Y. Misc. LEXIS 1220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gorelich-v-bronstein-nyappterm-1924.

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