Shapiro v. McLaughlin , 6 Misc. 146 ( 1893 )

GIEGERICH, J.

This action was brought to recover the sum of $31.25 as a share of a certain expected commission alleged to have been promised plaintiff by defendants. The defendants pleaded a general denial. The testimony of the plaintiff shows that the defendants promised to give him 25 per cent, of their commissions in case they procured a loan for $25,000 upon certain real property situate in this city, the application for which was placed with defendants by the plaintiff in behalf of another; that the plaintiff was to receive nothing in case $26,000 was loaned; that $25,000 was loaned; that the amount earned by the defendants was $125, out of which the plaintiff should get $31.25, 25 per cent, of said sum. The defendant Arthur W. McLaughlin was the only witness called by the defendants. He denied that he _ ever agreed to pay the plaintiff any part of his commission on the loan in question. The justice rendered a verdict in favor of the plaintiff for $20 damages, besides $3.50 costs. It is obvious that the judgment is not consistent with the proofs. Precisely a similar question arose in Fuld v. Kahn, 4 Misc. Rep. 600, 24 N. Y. Supp. 558, and this court decided that the recovery was not secundum allegata et probata. Applying the principles of the decision in that case to the one before us, the judgment should be reversed, and a new trial ordered, with costs to abide the event.