#### Wilson Burling, Respondent, *against*C. Godfrey Gunther, Appellant.

(Decided February 6th, 1882.)

At the trial, in the Marine Court of the City of New York, of an action for services rendered as a broker in procuring a loan of §35,000, the jury, under instructions that if they found for the plaintiff he would be entitled to recover $400, the amount alleged to have been agreed upon as compensation, found a verdict for him for that sum. *Held,*that, on appeal from the judgment entered on the verdict, it was error for the general term to affirm the judgment upon the plaintiff stipulating to reduce the verdict to $175; as, although the plaintiff’s right to commissions was limited to that amount by statute (1 R. 8. 709, § 1), the jury had power to award him less, had the question been submitted to them.

Appeal from a judgment, of the general term of the Marine Court of the City of New York affirming a judgment of that court entered upon the verdict of a jury, upon a stipulation to reduce the amount of the verdict.

At some date in or prior to August, 1878, the defendant employed Harnett, a real estate broker, to procure a loan of $35,000 for him at six per cent, interest per annum to be secured upon certain real estate in the City of New York. In that month Earle, a clerk for Harnett, applied to the plaintiff’s assignor, George H. Burling, to obtain the loan. He succeeded in doing so, and informed the defendant Sep- - *341tember 4th, 1878. On that date the defendant gave to plaintiff’s assignor a writing in these words:

“Brooklyn, Sept. 5th, 1878.

“Mr. George H. Burling.

“ Dear Sir:

“ I am ready to accept your loan on the 5th inst. at one p. h. provided the same has not been taken elsewhere. The commission to be four hundred dollars, and also provided the ■lawyer’s fees can be agreed upon.

“Very truly yours,

“ 0. Godfrey Gunther.”

From the evidence this was written September 4th, instead of the 5th, as dated.

The defendant afterwards did nothing. On September 6th, the parties who had accepted the loan withdrew their acceptance, because the papers were not delivered as promised on the 5th, and so notified George H. Burling. This action was brought by Burling’s assignee to recover four hundred dollars commissions. There was a contention of fact, upon the trial, over the question of an original employment of George H. Burling by the defendant to procure the loan. The trial in the Marine Court resulted in a verdict for four hundred dollars in plaintiff’s favor. The defendant’s motion for a new trial upon the minutes was denied, and an appeal taken from the order and judgment entered upon the verdict to the general term of the Marine Court, where the judgment was affirmed upon the plaintiff stipulating to reduce the recovery from four hundred to one hundred and seventy-five dollars. From this decision the defendant appealed to this court.

*C. Bainbridge Smith,*for appellant.

*Charles W. Dayton,*for respondent.

Beach, J.

[After stating the facts as above.]—The questions of fact affecting employment and service seem to *342have been settled by the jury in favor of the plaintiff upon conflicting evidence, and the verdict is not against its weight. In such case it is without the province of this court to interfere with the action of the tribunal to which parties are remitted by law, for the settlement of those contentions.

The general term of the Marine Court, however, exceeded its authority by directing an afflrmance, should the plaintiff stipulate to reduce the recovery to one hundred and seventy-five dollars. The statute limits the plaintiff’s right to that amount, but the jury had power to award him less (2 R. S. 6th ed. p. 1005, § 1). The case was given to them under an absolute instruction to allow him four hundred dollars, in case they found in his favor upon other questions. In my opinion, the general term of the Marine Court by its action has usurped the functions of a jury in fixing absolutely the *quantum*of plaintiff’s recovery at the statutory limit. No adjudication in the books upholds so broad a construction of the powers given an appellate court, to reverse, affirm or modify a judgment. In *Sears*v. *Conover*(3 Keyes, 113), the action was to recover damages for a breach of contract to sell and deliver potatoes at a certain price. The jury gave a verdict for five hundred dollars, which was reduced by the general term to three hundred dollars, and so affirmed by the Court of Appeals. There is nothing in the report of the case, to show what evidence was given upon the subject of damages, or indicating of what items the original sum consisted. The learned judge who wrote the opinion held the court possessed of power on a motion for a new trial to refuse to set aside the verdict, if the parties would consent to deduct-any amount deemed excessive. The case may have been one, where the elements of damage established by the proofs, were such as to enable the court to reach a conclusion upon the sum to which the plaintiff had shown a clear or absolute right. In *Cook*v. *Phillips*(56 N. Y. 310), the judgment on the percentage agreed upon was wholly reversed by the general term, and the Court of Appeals held the limit of the statute applicable, and affirmed the reversal giving judgment absolute against plaintiff by virtue of his stipulation. The opinion *343stated that the plaintiff was entitled to no more than fifty dollars upon a loan of ten thousand, and *“if he could have recovered that sum,”*it was waived by the stipulation. Nothing in the case supports the action here. In *Moffet*v. *Sackett*(18 N. Y. 522), the general term reduced a judgment for goods sold and work done, by deducting $12 damages caused by unskillful work. The referee had refused its allowance, but found it to have been from $12 to $15. The court held there was no authority to determine the amount of unsettled damages, and where the amount was indefinite and uncertain, so doing was an assumption of the jury’s province. In other cases either this principle is stated, or the facts show the reduction to have been made of amounts settled in the trial court, and in one, where interest was mistakenly computed *(Brownell*v. *Winnie,*29 N. Y. 400; *Hayden*v. *Florence Sewing Machine Co.,*54 N. Y. 221; *Cuff*v. *Dorland,*57 N. Y. 560 ; *Whitehead*v. Kennedy, 69 N. Y. 462).

In the case at bar, neither the plaintiff’s right, nor *the*defendant’s liability, with reference to amount, has ever been passed upon by the tribunal wherein such issues are settled. It appears the jury were misled by an erroneous instruction, and the general term of the Marine Court endeavored, instead of ordering a new trial, to adjudicate what the plaintiff was entitled to. This was beyond their power, the needed facts not having been found on the trial.

The judgment should be reversed, and a new trial ordered with costs to abide event.

Yak Bbukt, P. J., concurred.

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