CITY COURT OF NEW YORK — GENERAL TERM,

APRIL, 1898.

#### Robert B. Spaulding, Respondent, *v.*Jonas G. Goldsmith, Appellant.

Appeal from a judgment in favor of plaintiff and from an order denying a motion for a new trial.

Myers, Goldsmith & Bronner, for appellant.

Straley, Hasbrouck *&*Schloeder, for respondent.

Conlan, J.

This is an appeal by the defendant from a judgment entered in favor of the plaintiff and from an order made denying the plaintiff’s motion for a new trial.

The action is based upon the allegation that the defendant is indebted to the plaintiff in the sum of $300 for work, labor and services in the sale of a certain business, known as the Goldsmith Piano and Organ Manufacturing Company; as broker in the sale thereof, which labor and services were performed by the plaintiff *766between, the 1st-day of March) and the 20th day of March, 1898, and for which defendant agreed to pay plaintiff the sum of $300.

The defense interposed is a general denial. We think the ruling of the court w,as error.

The plaintiff, to maintain his cause of action, testified, that about March, 1891, while he was in the employfáent of the defendant, defendant told him that if he would sell his piano business, he would pay him 10 per cent, of the amount; of the selling, price; that he subsequently introduced one Bridger to the defendant, and that Bridger purchased the business for $3,000. The defendant denies the agreement to pay the commission, as well as that the plaintiff procured a purchaser. ' It "further appears that shortly after the purchase by Bridger, an action was commenced by him against the defendant to set aside the bill of sale, and that the plaintiff herein was a witness on the trial of that action.

Upon the trial of this case, and while the plaintiff was testifying in his own behalf,- the following took place:

. *“*Q. (By the Court.)' What did you receive as your, part of the recovery, or what, if anything, were you paid by any person for testifying in the Bridger case?

A. I was not paid anything; I received nothiug.

By defendant’s counsel: Ho person was paid for him.

Q. Directly and indirectly you did not receive a cent,, nor did any one receive a cent,, nor did anyone receive a cent, for what you did? " *'*

A. Ho, sir; but I was offered money by your client and his friend. • '

Q. You now mean Goldsmith?

A- Mr. Goldsmith’s friend, Mr. Stone. '

Q. Was Mr. Goldsmith present when it was offered you?

A. Ho, sir; it was in Stone’s office, and I was sent for early in the morning. "

Defendant’s counsel.— I ask to strike out what he says in regard to a conversation with Stone.

Plaintiff’s counsel.— I oppose that.

The Court.— You are testing this man’s icredibility. You are-endeavoring to show him to be one who is testifying for -money, and he has a right to testify as he does. I,deny the motion.”

“ Defendant’s counsel excepts.”

The'testimony as to what .the plaintiff said in the absence of, defendant should have been stricken out. Allowing it to remain made the calling of Stone necessary, and the; interjection of a new issue in the case, as .appears by the testimony subsequently ©ffered.

*767The testimony points towards bribery and corruption on the part of the defendant, and must to some extent have affected the minds of the jury.

.Entertaining these views above expressed, it will not be necessary to consider the other points argued by appellant.

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

Eitzsimoks, Oh. J., .and O’Dwyer, J., concur.

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