Grossman v. Scheindelman 79 N.Y.S. 1133

PER CURIAM.

Judgment of the municipal court affirmed, with costs.

WOODWARD, J.

(dissenting). This action was brought to recover commissions on the sale of certain real estate. At the close of plaintiff’s case, defendant moved to dismiss the complaint on the ground that the contract required Grossman to secure a purchaser within 10 days. This motion was denied, and defendant excepted, but at the close of all the evidence he failed to renew his motion to dismiss, and he must therefore be deemed to have waived the question of law upon the point suggested, and to have conceded that there was a question for the jury. Hopkins v. Clark, 158 N. Y. 299, 53 N. E. 27. We are, however, of the opinion that the verdict of the jury is against the weight of evidence, and that the plaintiff failed to establish that he ever brought to the defendant a person who was able and willing to purchase the premises upon the terms named by the defendant. The fact that the person who was introduced to the defendant by the plaintiff subsequently took title to the property, under the circumstances disclosed by the evidence, and which is not disputed or discredited in any way, is not evidence that the plaintiff was the procuring cause of the sale. The plaintiff’s case is so vague and uncertain, and the evidence on which the recovery is based is so slight, that considerations of justice require that the judgment should be reversed, and a new trial had, with costs to abide the event. The judgment appealed from should be reversed, and a new trial ordered; costs to abide the event.

GOODRICH, P. J., concurs.