McNulty v. Kammerer , 234 A.D. 894 ( 1931 )

Judgment and order affirmed as to appellant Kammerer, without costs, and reversed upon the law and the facts as to appellant Kramer, without costs, and the complaint dismissed as to him. The respondents alleged and proved a cause of action against appellant Kammerer to recover commissions for procuring a lessee of her real property. The verdict is amply supported by the evidence. The claimed inconsistencies in the charge, if such they were, were not harmful. Appellant Kramer was not a proper party to tMs cause of action. It is apparent that he and appellant Kammerer sought to deprive the plaintiffs of then commission. Their acts, in furtherance of tMs scheme, however, do not amount to legal fraud, since, by the judgment, the respondents have recovered as against Kammerer, and tMs court affirms the judgment. The claim for damages resulting from fraud depriving respondents of commissions as against Kammerer are inconsistent with the recovery against the latter, and the judgment against Kramer can be supported on no other theory than that of fraud. Lazansky, P. J., Young, Kapper, Hagarty and TompMns, JJ., concur.