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Literally that may have been true as far as it goes; but it carried with it such a suggestion of falsehood, and was accompanied with such a suppression of the truth, that, taken in connection with the other facts, it was clearly made to convey a fraudulent purpose.

But, if any doubt remains as to where the preponderance of evidence lay on the question of fraud, that doubt is removed by the plaintiff itself. Its methods of doing business, its combining the sale of books with the sale of building lots by installments, its dual existence by corporate names-indeed, its triple existence, for it organized, controlled, and owned another corporation, called the "Colonial Development Company,” for the purpose of selling those lotsits picture cards, maps, signs, and photographs, all tending to mislead and produce a false impression as to the contiguity of “Belmont Terrace” to highly developed and improved property, create an atmosphere of doubt and suspicion and lead to the conclusion, which, in view of the testimony and all of the surrounding circumstances, is irresistible, that the contract was induced by false and fraudulent representations, and is therefore void.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

COLLIER et al. v. DORMAN.

(Supreme Court, Appellate Term. May 7, 1909.) TRIAL ($ 396*)-COUNTERCLAIM-AMOUNT OF RECOVERY.

In an action for installments due on contracts for sale of books, $4.50 was conceded to be due. Defendant filed a counterclaim for $22 for books not as represented. Judgment was given for defendant for $22. Held, there was no basis for the judgment rendered.

[Ed. Note. For other cases, see Trial, Cent. Dig. $ 938; Dec. Dig. $ 396.*] Appeal from Municipal Court, Borough of Manhattan, First District. Action by Peter F. Collier and another against Benjamin N. Dor

From a judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON, and GOFF, JJ.

John T. Fenlon, for appellants.
David Steinhardt, for respondent.

PER CURIAM. Action brought to recover $4.50 claimed to be due as installments upon two contracts for the purchase by defendant of certain books. Defendant counterclaimed $22 paid by him for books which he alleged were not in accordance with representations made at the time of their sale. The court, without a jury, gave judgment for $22 in favor of the defendant.

The contract of October, 1908, was for Hugo's Foreign Romances, 29 volumes, $42. The contract of November, 1908, was for R. L. Stevenson, 8 volumes, and A. Lincoln, 8 volumes, $30. Defendant did not examine the books until three weeks after their delivery, and then complained of the “Foreign Romances” and “Stevenson," but was satisfied with the “Lincoln.” Plaintiffs said "all would be fixed up.” These books were not returned, and plaintiff still has them.

The evidence tends to show that, before purchasing, the books or duplicates were examined by defendant. The October contract, in evidence, shows a payment of $1.50, and a payment of $8 on the November contract. There is no other evidence of payments. It is therefore difficult to understand the calculation upon which $22 was found due to defendant. It was conceded that the $4.50 sued for had not been paid. The record furnishes no basis for the judgment rendered.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.

STURENBERG V. SPERO.

(Supreme Court, Appellate Term. May 7, 1909.) 1. APPEAL AND ERROR (8 928*) -- PRESUMPTIONS-INSTRUCTIONS-EXISTENCE OF

FACTS.

Where no exception is taken to an instruction which assumes the existence of certain facts and states the law applicable thereto, it is presumed on appeal that such facts were admitted or conclusively proved, and that the instruction correctly stated the law under the facts of the case.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. $ 3753 ;

Dec. Dig. 8 928.*] 2. BROKERS (8 86*)-ACTIONS_SUFFICIENCY OF EVIDENCE-CAUSE OF SALE.

In an action for commissions for procuring the sale of property, evidence held to sustain a finding that the sale was made through plaintiff's efforts, so that a verdict for him was improperly set aside.

(Ed. Note.—For other cases, see Brokers, Cent. Dig. $ 116; Dec. Dig. 8 86.*) Appeal from City Court of New York, Trial Term.

Action by Rudolph Sturenberg against Louis Spero. From an order setting aside a verdict for plaintiff and dismissing the complaint, plaintiff appeals. Reversed, and verdict and judgment reinstated.

Argued before GILDERSLEEVE, P. J., and DAYTON, and GOFF, JJ

Jacob Friedman, for appellant.

PER CURIAM. The plaintiff recovered a verdict for commissions as a real estate broker. The court set aside the verdict on the ground, as stated in its opinion, that:

“There is not sufficient proof in the case to justify a finding that his (plaintiff's) efforts induced the purchase, as the mere testimony that, after defendant said he did not wish to sell, plaintiff went from one to the other, mentioning the sale of the premises to each party upon his visits, does not *For other cases see same topic & & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

116 N.Y.S.-47

attain to the quality of proof required as a matter of law in this class of cases."

Plaintiff seems to rely upon the rule of law that where the trial court, in its instructions to the jury, assumes the existence of certain facts and states the law applicable thereto, to which instructions no exception was taken, it will be presumed on appeal that such facts were admitted or conclusively proved, and that the instructions correctly stated the law so far as that case was concerned. McDonald v. McDonald, 112 App. Div. 330, 331, 98 N. Y. Supp. 581; Howard v. Ludwig, 171 N. Y. 509, 64 N. E. 172; Daley v. Brown, 167 N. Y. 389, 60 N. E. 752.

The following appears in the record :

"Plaintiff's Counsel: I ask your honor to instruct the jury that if, through the instrumentality of the broker, the buyer and seller meet, and negotiations are thus opened between them, which continuing without the withdrawal of eithe party therefrom, culminating in a sale, though for a less sum than orig. inally demanded, the broker is entitled to his commissions.

"The Court: I so charge." In the main body of the charge the court instructed the jury thus: “The plaintiff claims

that he was asked by defendant to procure a partner for him in his (defendant's) place;

that he (plaintiff) brought this proposition to the attention of one Shapiro, and that. Shapiro refusing to enter into a negotiation with a view to a partnership, he (plain. tiff) returned to defendant, who told him that he would sell the property for the sum of $9,000 ;

and the testimony shows that he brought this second offer to Shapiro, that Shapiro refused to purchase, and that between the time the ist offer of $9,000 and the date of the sale he frequently went to and fro between these parties, Spero and Shapiro, making various endeavors to secure offers and endeavors to bring about a sale."

Under the instructions plaintiff claims that the jury were justified in giving a verdict for plaintiff, and that it was error for the trial court to set it aside. It will be remembered, however, that the defendant is the respondent, and that respondent's exceptions are not usually printed in cases on appeal from the City Court, so that we do not know whether the defendant excepted to the charge or not. Nevertheless it <ppears that plaintiff did testify as fully as the court states, and a fair nference is that from this running to and fro the parties came to an agreement, although in the absence of plaintiff, and a sale was made by defendant to Shapiro for $6,250. The jury seeins to have been justified in reaching a conclusion in plaintiff's favor, and it was error for the trial court to set it aside.

Order reversed, and verdict and judgment reinstated, with costs to appellant in this court and in the court below.

SCHOLLHAMER V. HAMBURGER.

(Supreme Court, Appellate Term. May 7, 1909.) NEGLIGENCE (§ 32*)—USE OF PREMISES–LICENSEE.

An owner of a building in process of construction prevented the use of an alley between the building and an existing building, and requested the janitor of the latter building, entitled to use the alley in the performance

of his duties, to pass through the building in process of erection when

ever he had occasion to go into the alley. The janitor, while walking across a plank provided by the owner of the building, was injured. He was at the time in the performance of his duties. Held, that he was not a mere licensee.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. 88 42–44; Dec. Dig. § 32.*]

Appeal from City Court of New York, Special Term.

Action by Frederick Schollhamer against Barnett Hamburger. From a judgment of dismissal, with costs, plaintiff appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Maurice Sichel, for appellant.

Nadal, Carrere & Jones (Harold S. Recknagel, of counsel), for respondent.

PER CURIAM. This is an appeal from a judgment of the City Court dismissing plaintiff's complaint at the close of plaintiff's case in an action for damages caused by defendant's alleged negligence. Plaintiff was janitor of a building adjoining which defendant was erecting three buildings. An alleyway or light shaft extended from the rear of the premises where plaintiff was employed to the street. The use of this alleyway or light shaft was necessary in the performance of plaintiff's duties. Defendant's building operations prevented that use. Plaintiff so informed defendant, who told plaintiff to "go through his (plaintiff's] building when I had occasion to go into that alleyway." Accordingly, in the performance of his duties, plaintiff, while walking across a plank provided by defendant in his building, was precipitated and injured quite severely.

The learned trial judge dismissed the complaint on the ground that plaintiff was a mere licensee, upon the authority of Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594. In that case plaintiff went upon defendant's premises without invitation, or on a matter of common interest; in other words, as a stranger. On the record here, plaintiff was entitled to go to the jury, and the dismissal of the complaint was therefore error.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

WILLIAM P. RAE CO. v. KANE et al.

(Supreme Court, Appellate Division, Second Department. May 7, 1909.)

BROKERS (8 52*)-COMPENSATION-BRINGING TO AGREEMENT.

To entitle a broker to compensation, he must bring the minds of the buyer and seller to an agreement for a sale and the price and terms under which it is to be made.

[Ed. Note.—For other cases, see Brokers, Cent. Dig. 8 73; Dec. Dig. $ 52.*]

Miller, J., dissenting. *For other cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Special Term, Kings County. Action by the William P. Rae Company against Peter F. Kane and others. From a judgment for plaintiff, and from an order denying a motion for new trial, defendants appeal. Reversed, and new trial granted.

See, also, 121 App. Div. 494, 106 N. Y. Supp. 47.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Richard M. Martin, for appellants.
Frank P. Reilly (Charles H. Hyde, on the brief), for respondent.

RICH, J. This action was brought to recover a broker's commission for the sale of land. It has been here once before, and must be again reversed, because the learned t'rial justice in his charge to the jury entirely ignored the doctrine that the duty assumed by a broker is to bring the minds of the buyer and seller to an agreement for a sale and the price and terms under which it is to be made, and that until that is done his right to commissions does not accrue. Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 38 Am. Rep. 441. The appellants also insist that the general tone of the charge was so prejudicial to them as to justify a reversal of the judgment. After careful consideration we conclude that this point is well made.

The judgment and order must be reversed, and a new trial granted; costs to abide the event. All concur, except MILLER, J., who dissents.

TORRETTO V. MUTUAL AID SOCIETY OF CAMPOFIORITO.

(Supreme Court, Appellate Term. May 7, 1909.) PAYMENT (8 82*)-RECOVERY-VOLUNTARY PAYMENT.

Where the treasurer of a society, on settling his accounts, was asked for and paid interest on the funds in his possession, he was not, in the absence of duress, mutual mistake of fact, or false statements made to induce the payment, entitled to recover the same.

(Ed. Note.-For other cases, see Payment, Dec. Dig. 82.*] Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Antonio Torretto against the Mutual Aid Society of Campofiorito. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Giuseppe L. Maggio, for appellant.
P. Francis Marro, for respondent.

GILDERSLEEVE, P.J. The plaintiff was the treasurer of the defendant from some time in 1904 until August, 1907, when he resigned. When his accounts were made up, the secretary asked the plain

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