Action for broker’s commissions. Judgment for defendant. Plaintiff appeals.
From the 369 typewritten pages of testimony and the exhibits in the case, the finding of the trial court cannot be sustained. In the first place the purchasers, Galgano and Cassola, who had no interest in this controversy, testified that plaintiff introduced the property and the defendant to them. Incontestably plaintiff was present during the drawing and modification of the contract ultimately carried out. Plaintiff in *757writing agreed to wait for his commission until the passing of title, and to waive commissions if title did not pass. Defendant’s son in his testimony spoke of plaintiff as the broker.
The defense consisted in an effort to show that Giuseppe Tuoti was the broker, and that plaintiff was his employé. An agreement between M. Santagelo & Co. (Tuoti being one of that firm) with plaintiff, whereby the latter agreed to act as manager in the banking business of the former for five years, was put in evidence. Tuoti was called and testified that he, too, was in the real estate business, and that plaintiff was his' employé there also. Defendant’s son requested plaintiff to divide commissions with Mr. Tuoti. Plaintiff refused. Two checks, of $10 each, dated in April, 1908, to plaintiff’s order, drawn by M. .Santagelo & ,Co. for salary, "were received under objection. Plaintiff’s violation of any agreement with his employers (if, indeed, such was the fact on the proofs, which is doubtful) concerned his employers, and not defendant. Tuoti also testified that he secured the purchasers. His lengthy cross-examination seriously affected his credibility, aside from the testimony of the purchasers to the contrary.
Plaintiff’s case was not overcome, even considering the admission of much immaterial testimony as to Tuoti’s claimed relation to the transaction, which only had the effect of clouding the real issue. The finding is not sustained by the evidence, and is against the weight of evidence. The interests of justice require that it be set aside.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.