Walter Myers, Respondent, against Robert J. Dean, Appellant

Walter Myers, Respondent, against Robert J. Dean, Appellant. (Decided June 2d, 1890.) Before offering at public auction a lease of property of the City -of New York, pursuant to law, the comptroller of the city, having charge of the matter, desired to obtain a reasonable offer of an upset bid for the lease. Plaintiff, a broker, procured several persons to make such offers, among them, defendant, who, plaintiff testified, agreed to pay him a commission if he would assist in obtaining the property. Plaintiff negotiated with the comptroller as to the price, and a proposal by defendant was finally made and reduced to writing, to take the lease at a certain rental, provided no one bid higher at the auction, and that defendant would pay brokerage; and defendant afterwards became the purchaser at the auction sale. Held, that the written proposal, with plaintiff’s testimony, if believed by the jury, established a sufficient consideration for a promise by defendant to pay brokerage; and that a verdict finding such a contract or an employment of plaintiff should be sustained, although defendant testified that he did not agree to pay brokerage, and that the clause as to brokerage was only inserted in the proposal to save the city from any claim therefor. Such contract was not void as against public policy, as it did not appear that plaintiff undertook to keep away other bidders, or that he in fact did so. Appeal from a judgment of this court entered on the verdict of a jury and from an order denying a motion for a new trial. .The facts are stated in the opinion. Sandy Sateh, for appellant. P. L. JEckerson, for respondent. [MAJORITY — Bookstaver, J.] Bookstaver, J. This action is brought to recover broker’s commissions in negotiating a lease of the property bounded by Weáfc, Reade, Washington, and Duane Streets in this city. The comptroller had charge of the property to rent on behalf of the city." The laws require that all leases of this kind shall be at public auction to the highest bidder. Before exposing such leases for sale, however, it has been usual and we think quite necessary for the officer having the matter in charge to obtain what he thinks a reasonable offer which the party desiring the property will make as an upset bid for the same, otherwise it might frequently happen that the property would either realise less than its value or have to be withdrawn from the sale. According to plaintiff’s testimony, the comptroller wished the plaintiff to bring parties to him and to procure offers for the property in question. Notices were posted on the property stating it was to lease. Plaintiff endeavored to get various persons to make offers, some of whom did, but their propositions were refused by the comptroller because he thought them too low. Plaintiff saw the defendant, talked to him about the property, showed him a diagram of it, told him how much the comptroller asked, informed the comptroller that he had a customer in Mr. Dean before the latter saw him. Previous to that time, as plaintiff testified, the defendant had agreed to pay him his commission if he would assist in obtaining the property. It was known to both the city would pay none. Plaintiff negotiated with the comptroller about the price, and liad, as he testified, several interviews with him about the matter. On the 2d of November, 1888, plaintiff and defendant met by appointment at the comptroller’s office, talked over the terms, and finally the defendant agreed to take the property on a lease for ten years at an annual rental of $31,000, provided no one bid higher at the auction sale. Whereupon the proposal was reduced to writing, and it contained a clause that the defendant would pay brokerage. The public sale afterwards took place and the plaintiff became the purchaser. Defendant denied that he ever agreed to pay brokerage, or that plaintiff rendered any services in the matter or was entitled to any commissions, and claimed that the clause as to brokerage was only inserted in the proposal to save the city from any claim for it. At the close of plaintiff’s case, defendant moved for a dismissal of the complaint on the ground that defendant’s promise to pay brokerage contained in the written paper was void and nudum pactum ; so it would have been, had it stood alone, but, coupled with the testimony, we think there was sufficient consideration established, provided the jury believed plaintiff’s evidence. He also moved to dismiss the complaint on the ground that no contract or employment had been proved, but we think the testimony was sufficient to warrant the submission of that question to the jury. It was sent to the jury, and they found a verdict for the plaintiff for $3,063.33. The evidence is conflicting," and we cannot say that the preponderance in defendant’s favor is so great as to warrant us in setting it aside, even if defendant had made that one of the grounds for so doing in his motion for a new trial. No exception was taken to the judge’s charge as originally made. At its close plaintiff’s counsel asked the court to charge “that if the jury believe that Mr. Dean stated to Mr. Myers, before the lease was obtained, that if he obtained the lease on his offer that he would pay the commission, that then the plaintiff is entitled to recover,” which it did, and defendant took an exception. The charge must be read as a -whole, and the portion excepted to does not mean, as plaintiff contends, that if Mr. Dean at any time stated to the plaintiff he would pay him a commission as a gratuity if he obtained the lease. But we think it meant that, in consideration of plaintiff’s services, he would pay the commission, and in this light it was not error. The exception to the admission of expert evidence as to brokerage was not well taken. It was admissible under the allegations of the complaint and was relevant to the issues. The question as to the legal effect of the written proposal was properly excluded. It called for a conclusion of law, and not for any fact. Nor was the contract void as against public policy. There is nothing in the evidence from which an inference can be drawn that the plaintiff undertook to keep others away from the sale or from bidding or purchasing at the same, or that he in fact did so. The whole agreement, if made, was completed when the written proposal was submitted to the comptroller, provided no one bid higher at the auction sale, and there was no bargaining between the parties looking to keeping anyone away from that sale. The judgment should therefore be affirmed, with costs. Larremore, Ch. J., concurred. Judgment affirmed, Avith costs.