#### John L. Travis et al., Respondents, *v.*David Stewart, Appellant.

(Supreme Court, Appellate Term,

April, 1900.)

1. Party — Discrediting, by proof that he had assigned his interest in the claim sued upon — Eight to explain assignment.

Where the sole issue in a closely contested action is whether the defendant, a broker, promised to pay the plaintiffs one-half of certain commissions which he had received, the plaintiffs should not be permitted to show that the defendant had, by an instrument, assigned all his commissions to third parties, and particularly where the plaintiffs’ attorney says in court: “ This document goes to throw a great *241deal of light upon the process by which the defendant sought to divest himself of any commissions received by him, and to put it in the hands of others ”. Where such an assignment is a.dmitted in evidence, the defendant is entitled to prove the circumstances under which he executed it.

2. Evidence — Declarations in one’s own favor inadmissible.

A written notification, to the owners of the lands sold by the broker, that the plaintiffs claim one-half of the commissions, is not evidence which is admissible for them as the paper is a mere declaration in their'own favor or an unsworn assertion of a claim.

Travis v. Stewart, 29 Mise. Rep. 606, reversed.

Appeal by the defendant from a judgment of the General Term of the City Court, affirming a judgment in favor of the plaintiffs, entered upon the verdict of a jury.

The opinion states the nature of the action and the facts so far as they are material.

Alexander *&*Ash (Mark Ash, of counsel), for appellant.

John Henry Hull, for respondents.

Gieoebich, J.

Eecovery of the sum of $807.50 is sought upon an express agreement alleged to have been made by the defendant to pay the plaintiffs one-half of the total amount of commissions received by him as broker in the sale of certain real estate. The sole issue litigated upon the trial was as to the making of the agreement set up in the complaint, the sale of the property, and the receipt of the commissions having been admitted by the defendant. One of the plaintiffs testified positively to the making of such an agreement, and the defendant with equal directness testified that no such agreement was ever made. That the weight of evidence is not subject to review by this court is too well settled to call for citation of authority.

Our attention has been directed, however, to certain questions of law raised by exceptions taken to the admission and rejection of certain testimony, and upon which the defendant asks for a reversal of the judgment herein.

Hpon the trial the plaintiffs offered in evidence a written instrument executed and acknowledged by the defendant, purporting to *242be an assignment by him to third parties, of the whole amount of the commissions claimed by the defendant to be due him for the sale of the lands. The offer of this instrument in evidence was objected to by defendant’s counsel, he at the same time stating to the court, that the defendant received the commissions upon the sale of the land and that the only point made by the defendant was, that there never had been any agreement entered into by him, to pay the plaintiffs any part of such commissions. Thereupon the plaintiffs’ attorney said, “ This document goes to throw a great deal of light upon the process by which the defendant sought to divest himself of any commissions received by him, and to put it in the hands of others.” The trial justice then admitted the writing in evidence, to which ruling the defendant’s counsel duly excepted. It is. impossible to see how this assignment of the defendant’s claim to commissions could be material to the plaintiffs’ case. The sale of the lands by the defendant and the receipt by him of the commissions, of which the plaintiffs claimed one-half, was expressly admitted by the defendant, and the fact that the latter had assigned his claim thereto could in no way affect the plaintiffs’ right to recover, nor did it in any way tend to prove the making of the alleged agreement between the plaintiffs and the defendant. The admission of the evidence was especially harmful in view of the avowed object for which the same was offered, the assertion by the plaintiffs’ counsel being to the effect that, “ the defendant sought to divest himself of any commissions received by him and put it in the hands of others.” The statement so made in the presence of the jury and the admission of the instrument by reason thereof could not fail to impress the jury with some force, and may well have had an effect prejudicial to the defendant’s case. Subsequently the defendant went upon the stand and was asked, “ Q. Hr. Stewart, look at this assignment called Plffs’ exhibit D. Under what circumstances was that assignment made by you ? ” To this question the plaintiffs’ counsel objected upon the ground *“*that the paper speaks for itself.” The objection was sustained and the defendant excepted. Having permitted the assignment to be introduced in evidence, coupled with the statement made by plaintiffs’ counsel as to the purpose for which it was offered, it was manifestly proper and relevant for the defendant to show under what circumstances it was made. The paper itself did not appear to be more than a mere assignment of the defendant’s claim to commissions. *243Plaintiffs’ counsel, by Ms assertions relative thereto, had given it a prominence to which it was not entitled, in fact, and the refusal of the court to permit the explanation called for, to be made, under all the facts and circumstances of the case, was error.

The plaintiffs were also allowed to introduce, against the objections made and exceptions taken thereto by the defendant, a written notification given by the plaintiffs to the owners of the lands sold by the defendant, in which the plaintiffs claimed one-half of the commissions upon the sale thereof. This writing was not material to the issues in the action. At best, it was a declaration of a party in his own favor and the unsworn assertion of a claim to which the plaintiffs were only entitled, upon proof, if such claim was not admitted. It had no bearing upon the question, as to whether there had been an agreement between the parties in this action for a division of those commissions.

TMs case was closely contested and turned upon the weight to be given the testimony of one of the plaintiffs upon the one hand, as against that of the defendant upon the other, and it is impossible for this court to say that the admission of the testimony referred to was not an important factor in influencing the minds of the jury in reaching the conclusion they did. There were other points urged by the appellant upon this appeal, but it will not be necessary to consider them in view of the conclusion reached 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.

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