#### Ethel Bucksdorf, Appellant, *v.*Arthur J. Bender and Philip Nadig, Respondents.

(Supreme Court, Appellate Term, First Department,

May, 1913.)

Brokers — commissions — action to recover commissions—weight oí evidence — contracts — misrepresentation of facts.

A signed statement by plaintiff's assignor, after he had been employed by defendants to effect an exchange of certain of their real estate for other property, by which he agreed not to be entitled to any commission unless everything was satisfactory to both parties to the exchange, fairly construed, means only that he was not to be entitled to commissions unless he procured a person willing to exchange on the terms specified by defendants.

Where, in an action to recover commissions alleged to have been earned by plaintiff's assignor, the ease was submitted to the jury on the theory of employment, without exception, the point that there was no evidence that he was employed by defendants -to sell or exchange the property cannot be raised on appeal from an order granting a motion to set aside a verdict in plaintiff’s favor and directing a new trial on the ground that the verdict was against the weight of evidence.

Where the owner of the other property testified that at the time he delivered a statement to one of defendants, an item for taxes read *“*$2,400 ” and that it had been altered to *499
      *“*$1,400 ” the question of fact was properly submitted to the jury; and an order setting aside the verdict on the ground that the agreement for the exchange of the property was procured by a misrepresentation of fact will be reversed and the verdict reinstated.

Appeal by plaintiff from an order of the Trial Term of the City Court of the city of New York, granting defendants’ motion to set aside a verdict rendered in favor of the plaintiff and directing a new trial on the ground that the verdict is against the weight of evi-' dence.

Henry Kuntz (M. Spencer Bevins and Abraham P. Wilkes, of counsel), for appellant.

Cornelius J. Barley (S. J. Bischoff, of counsel), for respondents.

Gerard, J.

The complaint sets up an action for brokerage commissions alleged to have been earned by one Potash, plaintiff’s assignor, in procuring a person who was ready, able and willing to enter into a contract of exchange of certain real estate owned by defendants in Allentown, Pa., for property in New York city, upo.n terms satisfactory to the defendants.

Potash testified that the defendants employed him to exchange for them certain property which they owned in Allentown for some other property; that he submitted to them a proposition to exchange their property for an apartment house in the city of New York owned by a corporation of which one Guthman was president. Potash procured from the defendants the following paper:

> “ Mr. Philip Potash :

> *“*We will make you the following proposition for the southwest corner of Convent Avenue and 147th *500Street. We will take the property subject to a first mortgage of $135,000, give $20,000 cash and give back a second mortgage of $15,000. My five and a half acres of B. B. factory site is to be taken at $75,000, subject to a first mortgage of $25,000 at six per cent. All other conditions regarding the income, expenses, as well as a clear title, must be guaranteed as statement rendered me. Also all other terms must be satisfactory to us.

> “ Yours respectfully,

> “Arthur J. Bender,

> “ Philip Nadig. ’ ’

This paper was dated July 18, 1912.

Before the defendants made this offer, they claimed that Guthman furnished to them a statement as to the taxes, expenses, etc., of the New York property. This statement, according to defendants, contained an item of $1,400 for taxes and the total expenses and taxes as totalled on the paper were $11,201.

Guthman examined the property in Allentown and Potash obtained from Grúthman a statement to the effect that he would exchange on the following terms:

> “ The price for his property, $220,000 payable as follows:

> Cash on contract................ $3,000

> Cash on passing of title......... 17,000-

> Existing mortgage ............. 135,000

> Equity Allentown............... '50-,000

> Purchase money mortgage 5 years,

> *6fo,*$1500 payable semi-annually. 15,000

> Total............."......... $220,000

> “ Yours truly,

> “ William Guthman.”

*501After Guthman gave this statement, Potash telegraphed the defendants that everything was satisfactory on their own terms and that they should come to New York to close the contract. Defendants then informed Potash that they would not exchange on these terms.

The defendants claim that on July 18, 1912, Potash had signed a statement saying:

> “ I hereby agree not to be entitled to any commissions whatsoever, unless everything is satisfactory to both parties.

> *“*P. Potash.”

The first question is whether this paper signed by Potash prevents his recovery unless an exchange was actually made. I think not. I think that the fair construction of this paper simply means that Potash was not to be entitled to commissions unless he produced a person willing to exchange on the terms named by defendants.

The first point made by the respondents in their brief is that there was no evidence that plaintiff’s assignor was employed by the defendants to sell or exchange the property. No such issue was raised in the court below, and the case having been submitted to the jury on the theory of employment, without exception, that point cannot now be raised.

The other point relied on is the claim made by defendants that the statement submitted to them as to the expenses and taxes on the property by Guthman was false, in that it stated that the taxes were $1,400, when, as a matter of fact, the taxes were $2,400 or more. The statement as offered in evidence by defendants contained the item “ Taxes $1,400,” but Guthman, who testified as" a witness, claimed that at the time the statement was delivered by him to the *502defendant Bender, the item read 11 Taxes, $2400, ’ ’ and that the paper had been altered by changing this item from $2,400 to $1,400 and by changing the total from $12,201 to $11,201. An inspection of this paper shows that it has been altered. This question of fact was properly submitted to the jury and resolved by them in favor of the plaintiff, that is, the jury found by their verdict that Guthman had not misrepresented the taxes and that this item of taxes had originally been $2,400 and not $1,400, as the item now appears on the altered paper.

The learned court below set the verdict aside on the ground that the agreement for the exchange was procured by a representation clearly contrary to fact. This question, however, as to the alteration of the paper, was one peculiarly within the province of the jury, and I can see no reason for disturbing their finding.

The order setting the verdict aside, therefore, must be reversed, with costs, and the verdict reinstated, with costs.

Guy and Page, JJ., concur.

Order reversed, with costs.