#### Newton W. Chambers, Respondent, *v.*Julius Goldklang, Appellant.

(Supreme Court, Appellate Term,

April, 1900.)

1. Verdict — Improper direction of where there was a conflict of fact — Waiver of right to go to the jury.

Where there is a conflict in a case upon material questions of fact, the direction of a verdict for the plaintiff is an error of which the defendant may avail himself, upon due exception taken, where he has, at the close of the proof, not moved for a non-suit nor done any other act from which a waiver of his right to go to the jury might be implied.

3. Reversal — Where the same kind of evidence is admitted for one side and refused to the other.

Where the trial justice admits testimony against the objection of the defendant and, upon the plaintiff’s objection, excludes testimony of a similar character and equal relevancy when offered by the defendant, a judgment for the plaintiff must be reversed.

Appeal by the defendant from a judgment of the General Term -of the City Court of ¡New York, affirming a judgment entered in plaintiff’s favor for $265.95, damages and costs, upon the verdict of a jury directed by the court.

The nature of the action and the material facts are stated in the opinion.

■ Abraham H. Sarasohn, for appellant.

Wyatt *&*Trimble (William E. Wyatt, of counsel), for respondent.

Giegeeich, J.

The action is to recover broker’s commissions for placing a loan. The answer is a general denial.

The plaintiff testified that at his office, in the spring of 1897, in April or May, an agreement was made between the parties litigant by the terms of which he was to procure a loan of $15,000 upon the defendant’s real property, and when procured the latter was to pay him a commission of one per cent, upon the amount of such loan. The defendant denied that he ever met the plaintiff at the *248latter’s office, and that he made such an agreement. As to several other material matters, there was a conflict of testimony. At the close of the entire case the plaintiff moved for a direction of a verdict by the jury in his favor, which motion was granted, and the defendant took an.exception.

As the defendant did not when the proofs were all in move for a nonsuit, or-do any other act from which a waiver of the right to go to the jury may he implied, the exception so noted by him is sufficient to require a reversal of the judgment if there was any evidence tending to establish any material fact in-his favor, which if found by the jury might have changed the result,' and it was not necessary for the defendant, in order to preserve such right, to go further and request that any fact be submitted to the jury. Haines v. N. Y. C. & H. R. R. R. Co., 145 N. Y. 235, 237 ; Baylies Tr. Pr. (2d ed.) 323. As we have noted, there was a conflict of testimony upon material questions of fact, which should have been submitted to the jury for their determination, and, under these circumstances, the direction of a verdict was not justified. Schillinger v. McGarry, 25 Misc. Rep. 745, 749.

The defendant’s contention that during the course of the trial, the trial justice admitted testimony against his objection and exception, and upon the plaintiff’s objection excluded testimony of the same character and equal relevancy when offered by the defendant, seems to be well founded, and this likewise is good ground for reversal. Sentenne v. Kelly, 59 Hun, 512, 517. It results from these views that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and O’Gorman, J., concur. K

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