Harris v. Kaufman , 155 N.Y.S. 229 ( 1915 )

BIJUR, J.

[1] Respondents’ counsel, in his opening statement, says:

“The action is brought to recover commissions alleged by the plaintiff to have been earned by him by reason of certain sales by him of broad silks manufactured by the defendants.”

The learned judge below in a brief charge, eight times referred to the fact that plaintiff was claiming commissions from the defendants for sales of defendants’ goods effected while plaintiff was selling his own merchandise on the road and elsewhere, and five times referred to the fact that defendants were then occupying part of the plaintiff’s loft and paying rent therefor. At the close of the charge the plaintiff’s counsel asked the court to charge that he did not intend by the charge “to convey to them as to how they should decide this case on the facts,” which request was declined. It can scarcely be doubted that a charge in the form described was seriously calculated to influence the jury against plaintiff’s claim, but we do not rest our reversal on this alone.

[2] In this case, however, the court unfortunately, not only indicated by this form and language an opinion that the plaintiff’s cause of action was without merit, but in one instance at least distinctly misstated the plaintiff’s contention. Thus the court said:

“By that he must satisfy you by a fair preponderance of evidence as to his contentions; that is, that the defendants agreed to pay him compensation for the selling of defendants’ merchandise while the plaintiff was selling his oten merchandise in Boston to various houses, as claimed by the plaintiff.”

Neither in the complaint nor during the course of the trial did plaintiff make any such contention, nor was it claimed by him that defendants’ agreement was to pay him any compensation while plaintiff was engaged in anything other than the sale of defendants’ merchandise. By this sentence a circumstance that had appeared in evidence was transmuted into an integral part of the plaintiff’s claim and contention, and there can be no doubt that the jury was misled thereby.

Judgment reversed, and new trial granted, with costs to appellant to abide tire event. All concur.