Newman Leavy, Appellant, v. Abraham Seide, Respondent

Newman Leavy, Appellant, v. Abraham Seide, Respondent. Second Department, February 24, 1911. Principal and agent—broker — action for commissions—loan — evidence. Where in an action to recover commissions earned by plaintiff for procuring a loan he gives evidence tending to prove all the necessary facts, the complaint should not be dismissed at the close of his case merely because in his testimony he erroneously stated that the period of the loan was to be five years instead of three, if he corrected his testimony as soon as his attention was called to the mistake and distinctly stated that the loan requested was for three years only. Appeal by the plaintiff, Newman Leavy, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered in the office of the clerk of said court on the 25th day of June, 1910, dismissing the complaint upon the merits, with costs. William A. Wight, for the appellant. Herman R. Elias, for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: At the close of the plaintiff’s case the defendant moved to dismiss the complaint for failure of proof. There was no ruling on the motion. The defendant then rested and renewed the motion. The Municipal Court justice then reserved decision on the motion and thereafter rendered judgment dismissing the complaint on the merits. Assuming that he could do so on such a motion, the judgment must be reversed as clearly against the weight of evidence. The action is to recover for commissions earned by the plaintiff as real estate broker in procuring a loan for the defendant of $5,000 at five per cent on certain real estate. That the plaintiff did procure such a loan from the Lawyers’ Title Insurance and Trust Company, which was not accepted by the defendant, is undisputed, and it is also undisputed that this service was rendered on the defendant’s employment and for an agreed compensation. The loan was to be for a period of three years, and the only flaw existing or suggested in the plaintiff’s testimony arose from the fact that he stated on the trial that it was to be for a period of five years. On his attention being called to the fact, however, he corrected his testimony and stated distinctly that it was to be for three years. It is not remarkable that a witness, having in mind the sum of five thousand dollars and the rate of fi/oe per cent should have spoken of the period as five years instead of three, and there is nothing to indicate that the slight error was not genuine and the correction truthful. I think justice requires that the case be tried again, and, therefore, recommend a reversal. Jenks, P. J., Thomas, Cabe and Rich, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs- to abide the event.