THE NEW YORK SUPPLEMENT VOLUME 135 BIRNBAUM v. UNGER. (Supreme Court, Appellate Term. May 9, 1912.) 1. BROKERS (§ 49*)-COMPENSATION-CONTRACT-NECESSITY OF PERFORMANCE. Where a contract employing brokers to procure a loan stated that the agreement should be void unless the brokers procured a written acceptance from the person who was to loan the money within one day from its date, there could be no recovery thereon without a showing that such written acceptance was procured. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.*] 2. Brokers (§ 54*)—CompensaTION-PROCURING Customer Able, Ready, and WILLING. A broker employed to procure a loan was not entitled to compensation for his services upon a showing that, while the fund was not in the lender's hands, his customer would send him a check therefor, as a condition to the recovery of commissions is the procuring of a customer ready, able, and willing to perform. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*] 3. EVIDENCE (§ 201*)-DECLARATIONS—ADMISSIONS AGAINST INTEREST. In an action for a broker's commissions for making a loan, testimony of admissions of the plaintiff was admissible to show the agreement under which he was employed. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 687; Dec. Dig. § 201.*] Appeal from City Court of New York, Trial Term. Action by Max Birnbaum against Regina Unger. From a judgment for plaintiff on a directed verdict, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered. Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ. Isaac Josephson, of New York City, for appellant. Johnston & Johnston, of New York City (Edward W. S. Johnston, of New York City, of counsel), for respondent. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 135 N.Y.S.-1 GERARD, J. [1] Plaintiff claimed that he and his assignor, Samuel Seiniger & Co., were employed by the defendant to procure a loan of $35,000 on certain real property owned by defendant. Plaintiff sued upon an alleged oral contract, claiming that a paper which was admitted in evidence, and which was unsigned, was but a "tentative agreement," although as to this paper Seiniger, one of the plaintiff's assignors, testified that: "This paper contains the terms on which I regarded myself as employed by this defendant." This paper was as follows: "New York, February 8, 1910. "Messrs. Samuel Seiniger & Co.-Dear Sirs: I hereby employ you as brokers to procure a loan of $35,000 at 5% for five years on Nos. 295-297 Seventh street, secured by my bond and a first mortgage on the said property. I agree to pay you for your services as brokers $1,073 to cover, which shall include your fees as brokers, attorney's fees, policy of title insurance, mortgage tax, drawing and recording the mortgage. It is understood that unless a written acceptance be given in writing from Albert Francis Hagar, attorney, No. 60 Wall street, within one day from even date, said acceptance to be delivered to me or my attorney, Mr. Josephson, then this agreement shall be void." Neither plaintiff nor Seiniger & Co. ever procured an acceptance in writing from Hagar. [2] Second. There was no evidence of the acceptance of a person able, ready, and willing to make the loan. Hagar testified that he was ready, able, and willing to make the loan, but on cross-examination testified that the fund was not in his possession; that his client would simply send him a check; that the money was not in his hands. This evidence was insufficient. Before a broker can recover in an action of this nature, he must show that he had procured a person able, ready, and willing to make the loan. Holliday v. Roxbury Distilling Company, 130 App. Div. 654, 115 N. Y. Supp. 383. [3] Third. Mr. Josephson, defendant's attorney, called as a witness, was asked to give a conversation had by him with plaintiff. This was objected to, and the court asked: "What is the purpose of this?" And the answer was given: "The Witness: This conversation is for the purpose of showing the agreement under which the plaintiff was employed." Thereupon the court sustained the objection. Of course, the admissions of the plaintiff as to the alleged oral contract were admissible against him under any theory of the case. The above errors warrant a reversal of the judgment. Judgment and order reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. (150 App. Div. 304.) FRIEDEL v. BROOKLYN HEIGHTS R. CO. (Supreme Court, Appellate Division, Second Department. April 26, 1912.) CARRIERS (§ 320*)—STREET RAILROADS-INJURY TO PAssenger-JurY QUESTION -NEGLIGENCE. In an action for injury to a street car passenger, caused by the motorman running the car into a body of water which had accumulated on the track, whether the motorman was negligent held, under the evidence, a jury question. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149; Dec. Dig. § 320.*] Appeal from Kings County Court. Action by Josephine Friedel against the Brooklyn Heights Railroad Company. Judgment dismissing the complaint, and plaintiff appeals. Reversed, and new trial ordered. Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ. Edwin F. Valentine, of New York City, for appellant. PER CURIAM. This action was brought in the County Court of Kings County to recover damages for personal injuries to the plaintiff while a passenger in one of the trolley cars of the defendant on the night of August 24, 1907. At the close of the plaintiff's testimony her complaint was dismissed, on the ground that she had failed to make out a cause of action. Taking the evidence offered by the plaintiff in its most favorable aspect, her proofs go to show that, while she was a passenger on one of the trolley cars of the defendant on Cypress avenue in the borough of Brooklyn, a trapdoor in the floor of the car sprang open and a volume of water poured in and splashed over plaintiff and other passengers, and that she thereupon became frightened, arose in her seat, and in her fright fell into the space previously covered by the trapdoor, and suffered more or less physical injuries. It appeared likewise, as a part of her proof, that on the night in question it had been raining heavily, and that that portion of the street where the accident took place was below grade, and because of lack of proper sewer facilities was subject to flooding whenever there was a considerable rainstorm; that this condition had existed for a very long time, and that when the trolley car approached the spot in question it was operated at such a rate of speed that it rocked from side to side. It seems to us that under these circumstances it was a question of fact for the jury whether the motorman should not have anticipated the presence of a large body of water at this spot, in view of the fact that water did accumulate there after every heavy rainstorm, and whether with such anticipation it was not negligent for him to run his car into such a body of water at such a rate of speed as to bring the floor of his car in very violent contact with the water, and thus produce the result which happened. The presence of the trapdoor •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |