King v. Kaim

29 Misc. 750, 60 N.Y.S. 264

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1899
• Status: Published

Opinion

Leventbitt, J.

The defendants have appealed from a judgment in favor of the plaintiff in an action to recover brokerage.

There is no dispute that the plaintiff was employed by the defendants to procure a tenant for the three lofts of certain premises owned by them and that pursuant to such employment he introduced to them a proposed tenant. The only mooted question is one of fact: Whether the negotiations which ensued culminated in an agreement for a lease. The conflict below turned on the question whether or not the defendants, as one of the terms of the agreement, stipulated to furnish steam power for the lofts at a stated figure. The justice’s solution of the conflict could be the subject of our review only in the event that injustice had been done, but so far from this having been the case, the slight and evasive testimony of the defendants is completely outweighed by that of the plaintiff and two disinterested witnesses.

At the end of the plaintiff’s case a motion was made to dismiss the complaint as to the defendant Haim. The motion should then have prevailed and its denial would have presented ground for reversal. Instead of relying on the exception taken, the defendants elected to present their affirmative ease, in the course of which it was elicited by the cross-examination of the defendant Landauer that he was vested with authority to contract for and bind his cotenant Haim with reference to the employment of the plaintiff. The legal effect of the exception was, therefore, nullified. Hopkins v. Clark, 158 N. Y. 299.

The judgment was clearly right and should be affirmed.

Freedmax, P. J., and MacLeaw, J., concur.

Judgment affirmed, with costs to respondent.