Action by Benjamin G. Hitchings against the Brooklyn Elevated Railway Company. Judgment was rendered in favor of plaintiff for $25, and plaintiff appeals. Reversed. Argued before CLEMENT, C. J., and VAN WYCK, J. H. M. Hitchings, for appellant. Hoadly, Lauterbach & Johnson, for respondent. VAN WYCK, J. This is an action in equity to compel defendant, as a condition of avoiding an injunction against its further use of the street, to pay the plaintiff compensation for his land taken in the street, and for damage to his adjacent premises by the structure of an elevated railway, and the continuous operation thereof. The trial resulted in a judgment for $25 damages in favor of plaintiff, from which he appeals. Among other rulings which he insists were errors harmful to his claim was that excluding evidence of the comparative increase of similar property in the immediate neighborhood, viz. on the nearest part of the two nearest streets. The court of appeals has held such testimony admissible, and in fact, while discussing the inadmissibility of the general opinion of an expert as to what would have been the value of certain premises if the railroad had not been built, suggested that evidence of the comparative increase in value of similar property in the neighborhood furnished proper data for the consideration of the jury or court on the question sought to be established by such general opinion or conclusion of the expert. Roberts v. Railroad Co., 128 N. Y. 455, 473, 28 N. E. 486; Becker v. Railway Co., 131 N. Y. 509, 511, 513, 30 N. E. 499. Judgment must be reversed, and new trial granted, with costs to abide the event. (6 Misc. Rep. 432.) BUCKHOUT v. BERGER. (City Court of Brooklyn, General Term. January 22, 1894.) FACTORS AND BROKERS-AMOUNT OF COMMISSIONS. Where defendant employed a broker to procure a person to erect a building, and lease it to defendant for 10 per cent. of its cost for a term of years, the broker's commissions are not limited by the amount of the rentals. Appeal from trial term. Action by Henry C. Buckhout against Jacob S. Berger. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Argued before OSBORNE and VAN WYCK, JJ. Horace Graves, for appellant. Jerry A. Wernberg, for respondent. PER CURIAM. Plaintiff brought this action to recover on a quantum meruit for his services in procuring a capitalist ready and willing to erect a theater at a cost not exceeding $75,000, and to lease the same to the defendant for a term of years, at a rental of 10 per cent. on the gross outlay. Plaintiff had a ver dict. The learned counsel for the defendant claims that it was error for the court to refuse to charge that plaintiff, if entitled to recover, could only recover, in the absence of any special agreement, the usual broker's commissions on the rentals as the limit of his compensation. We think the court was right in refusing so to charge, because the services claimed for included more than the mere rental of premises; they included the finding of a capitalist willing to buy land in a specified section of the city, and to erect a theater on plans proposed by defendant, as well as the leasing thereof to defendant. What the services rendered by plaintiff were fairly worth was left to the jury, on the evidence, and we think their verdict was a just one. The exception to the refusal to charge as requested at folio 129 was also untenable. There was no evidence in the case that would have justified the jury in finding any agreement that Williams, the capitalist, was to pay plaintiff for his services. Further, the question as to whether defendant employed plaintiff was left to the jury to determine, and the court charged the jury that plaintiff could "only recover on the theory that he was employed by Mr. Berger." We think that the judgment and order appealed from should be affirmed, with costs. (6 Misc. Rep. 538.) CUMMINGS v. ROSENBERG. (City Court of New York, General Term. January 18, 1894.) LEASE TERMINATION-FORECLOSURE OF MORTGAGE. Where leased premises are sold in foreclosure proceedings, and the decree provides that the purchaser shall be given possession on production of the referee's deed, the lessee is not obliged to demand from the purchaser the production of such deed before he can surrender the premises, and thereby détermine his liability. Appeal from trial term. Action by James M. Cummings against Henry Rosenberg. From a judgment in favor of plaintiff, defendant appeals. Modified. Argued before FITZSIMONS, NEWBURGER, and McCARTHY, JJ. Wolf, Kohn & Ullman, for appellant. A. G. N. Vermilye, for respondent. FITZSIMONS, J. The defendant rented, for the term of one year from May 1, 1892, premises No. 125 West 127th street, in this city, from the plaintiff. On December 13, 1892, after due proceedings, a decree was entered in a foreclosure action in which the plaintiff and defendant were defendants, and the demised premises the foreclosed premises. Said decree provided that the purchaser at the foreclosure sale be let into possession of the premises upon production of the referee's deed. The premises were sold, and the referee's deed delivered, February 17, 1893. The purchaser, through his agent, demanded and received the keys of said premises, the same or next day, from defendant. The plaintiff commenced this action for the rent due for the months commencing November 1, 1892, and ending May 1, 1893, and judgment was rendered in his favor for the rent so claimed. Upon the delivery to him of the referee's deed, the grantee in said deed became the owner of the premises in question. The evidence shows that said purchaser demanded possession of said premises on February 18, 1893. Defendant surrendered them to him on that day by delivering up the keys. Therefore, there was a surrender and acceptance of the demised premises; consequently, a cancellation and termination of the lease mentioned. And, if it was not for the fact that the pleadings admitted that the rent was payable monthly in advance, the plaintiff would only be entitled to rent up to February 18, 1893; but, under the agreement to pay monthly in advance, the plaintiff is entitled to recover for the month of February, as well as January, 1893, and November and December, 1892. It was error for the trial justice to find that he was also entitled to rent for March and April, 1893. The judgment rendered must be accordingly reduced $140, being the amount of rent for said two months. The defendant was not required to demand from the purchaser a production of the referee's deed before he could surrender the premises. He had a right to do so, if he chose, upon the demand of the purchaser. Nor was it necessary that the report of the referee upon the foreclosure sale should have been confirmed. Such procedure would have been proper, but was not necessary. The judgment herein is reduced to $380, and interest thereon and costs, and allowances on said principal and interest of 5 per cent., and, as so mcdified, is affirmed, without costs. The pleadings are hereby amended so as to conform to the proof submitted. All concur. (6 Misc. Rep. 535.) BIRNBAUM v. LORD et al. (City Court of New York, General Term. January 18, 1894.) WITNESS-IMPEACHMENT. Where witness testifies that plaintiff swore to certain facts on a former trial, the minutes of such former trial are admissible for the purpose of impeaching the witness. Appeal from trial term. Action by Joseph Birnbaum, an infant, by Marx Birnbaum, his guardian ad litem, against Samuel Lord and Edward P. Hatch. From a judgment in favor of plaintiff, defendants appeal. Affirmed. Argued before NEWBURGER and MCCARTHY, JJ. Henry Tompkins, for appellants. MCCARTHY, J. This is an appeal from a judgment entered upon the verdict of a jury awarding the plaintiff $250 damages for personal injuries caused by negligence, and from the order denying defendants' motion for a new trial. This involves a question of fact, and, while the evidence is not very strong, yet it is sufficient to require the question of negligence to be submitted to the jury. There was sufficient evidence as to the ownership of the wagon and the agency of the driver to have forced defendants to contradict same. Seaman v. Koehler, 122 N. Y. 646, 25 N. E. 353. The evidence of Stone was admissible and relevant, as also the minutes of the former trial, which were offered for the purpose of impeaching the witness Tompkins, who had just sworn that on the last trial the boy Birnbaum had sworn to a certain state of facts. These minutes were in the possession and control of the witness Tompkins, and admitted to be correct. They were proper, then, to prove that the boy did not swear to the facts as testified to by Tompkins. The case was properly submitted to the jury, and we find no error. Judg. ment is therefore affirmed, with costs. (6 Misc. Rep. 629.) LICHTENSTEIN v. LICHTENSTEIN. (City Court of New York, General Term. January 18, 1894.) DISCOVERY-DISCRETION OF TRIAL COURT. An order denying a motion for the examination of plaintiff before trial will not be disturbed unless the court abused its discretion. Appeal from special term. Action by Nathan Lichtenstein against Herman Lichtenstein. From an order denying a motion for the examination of plaintiff before trial, defendant appeals. Affirmed. Argued before NEWBURGER and MCCARTHY, JJ. George Hahn, for appellant. Alfred & Charles Steckler, for respondent. MCCARTHY, J. This is an appeal from an order denying a motion for the examination of the plaintiff before trial. The papers used on the motion present a proper case for the exercise of judicial discretion. In the absence of abuse in the use of this discretion, we cannot interfere. There was none here, and the order must therefore be affirmed, with costs. (6 Misc. Rep. 627.) CONWAY v. BARBER et al. (City Court of New York, General Term. January 18, 1894.) COMPROMISE-PAYMENT UNDER PROTEST. Signing a receipt in full on payment of a less sum than was claimed to be due does not preclude the creditor from afterwards recovering the amount actually due, where the sum paid was accepted under protest. Appeal from trial term. Action by Frederick Conway against Charles G. Barber and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed. JJ. Argued before FITZSIMONS, NEWBURGER, and McCARTHY, Remsen & Parsons, for appellants. FITZSIMONS, J. The only exception taken is found at folio 36 of the case on appeal. It cannot avail appellant, because the conversation objected to was communicated to one of the defendants, and he made answer thereto. It was therefore admissible. The plaintiff, according to his testimony, was entitled to commissions upon the coal sold by him. As to the alleged settlement claimed by defendants, that claim is disputed by the plaintiff. He says that he accepted the $42 paid him under protest. Under these circumstances, the fact that he signed a receipt in full for all commissions, and defendants' contention that his commission amounted only to $42, do not preclude him from recovering the sum due him. The verdict is amply sustained by the evidence, and is not contrary to law, and is therefore affirmed, with costs. All concur. (6 Misc. Rep. 628.) REICH v. REICH. (City Court of New York, General Term. PAYMENT APPLICATION-QUESTION OF FACT. January 18, 1894.) Where a receipt states that a payment was received on a certain note, and the creditor testifies that he intended to describe a certain other note of the debtor, and that the description of the note was inserted by mistake, it is for the jury to determine to which note payment was intended to be applied. Appeal from trial term. Action by Jacques Reich against Lorenz Reich. From a judgment in favor of defendant, plaintiff appeals. Reversed. Argued before FITZSIMONS and MCCARTHY, JJ. John L. Wilkie, for appellant. Abram Kling, for respondent. FITZSIMONS, J. The defendant had an undoubted right to elect which note he chose to pay, but I fail to find in the printed case on appeal any evidence that he exercised that right. In that event the plaintiff had the right to select either note for payment, and seemingly he chose the note of November 28, 1890, and also compelled payment of the interest thereon before he delivered it up to defendant. The fact that plaintiff signed a receipt stating that he received $1,000 on the note of June 6, 1891, is not conclusive against him. He claimed that he intended to insert the note of November 28, 1890, but by mistake inserted the note of June 6, 1891. seems to us that it was for the jury to say whether or not the defendant directed the plaintiff to receive the $1,000 paid in payment of the June, 1891, note, or whether or not the plaintiff, of his own volition, selected that note for payment. The question thus presented was a question of fact for the jury to determine, and not a question of law for the learned trial justice to decide. Therefore, It |