Winans v. Demarest

84 N.Y.S. 504

Opinion

BISCHOFF, J.

The issue in the action was whether the plaintiffs were the procuring cause of the contract of sale of the defendant’s premises, and the evidence in support of the plaintiffs’ case discloses that the purchaser was not the person upon whom the brokers’ .influence was actually exerted. The inference that the plaintiffs were the procuring cause of the contract is extremely slight, if, indeed, sufficient as the basis of a verdict; and it is more than probable that the finding of the jury was made to rest upon proof of a statement made by the defendant’s husband to the plaintiffs’ agent, which could be construed as a recognition of the plaintiffs’ right to commissions. There was no proof of agency in the defendant’s husband for the purposes of the disposal of her real estate, and his admissions were certainly incompetent. Evidence of the husband’s statement was continuously objected to throughout the trial, and at intervals motions were made to strike it out, reiterated before the case was submitted to the jury. Much of the evidence to which specific objection was taken may have been of a character, such as to make, the error of its admission harmless, but the rulings clearly denoted the attitude of the court to be that statements of Mr. Demarest were competent; and the defendant was not required to renew the objection when finally, in the course of the plaintiffs’ evidence in rebuttal, the highly prejudicial testimony to which we have referred was brought out. The attention of the court was called to the incompetent character of the evidence after this, and the verdict founded upon it should not be permitted to stand.

Judgment reversed and new trial ordered, with costs to appellant to abide the event. All concur.