#### Morris Flower and Morris Goldberg, Plaintiffs, Domenica Colucci, Respondent, *v.*Abraham Kassel, Henry C. Krakaur and Eli Sulzer, Appellants.

(Supreme Court, Appellate Term,

May, 1905.)

Brokers — Sale of real estate — Action for commissions — Written authorization— Improper exclusion of testimony—Burden of proof not sustained.

A complaint in an action by three brokers, not alleged to be partners, to recover commissions upon the sale of real estate, owned by defendants as tenants in common, is properly dismissed *342except as to the one who, as shown hy the evidence, had a written authorization to make the sale required by section 640d of the Penal Code.

The exclusion of testimony, called for on cross-examination hy one of the original plaintiffs, as to whether he or plaintiff procured the purchaser, duly excepted to, constitutes error for which a judgment in plaintiff’s favor should be reversed.

Where, on appeal from a judgment in plaintiff’s favor, the record discloses that his own testimony, bearing upon the terms of sale and as to what transpired when the purchaser was brought ready and able to buy upon the terms authorized hy defendants, is unsatisfactory, because contradictory, and, read in connection with testimony of defendants, lacks preponderating force, the judgment will be reversed and a new trial granted.

Appeal by defendants from a judgment of the Gity Court of the city of New York entered on the verdict of a jury in favor of the plaintiff-respondent, and from an order denying a motion for a new trial, and an order awarding plaintiff-respondent an extra allowance.

Isaac J. Danziger (Morris Hirsckberg, of counsel), for appellants.

Maurice J. Katz (Alex B. Greenberg, of counsel), for respondent.

Greenbaum, J.

This action was brought by three plaintiffs to recover the sum of $1,440, brokers’ commission upon the alleged sale of six houses, belonging to the three defendants, as tenants in common.

One of the defenses urged hy the appellants is that the plaintiffs did not have the written authorization .for the sale of lands required by section 640d of the Penal Code and that the plaintiffs being violators of the law had no standing.

It appears that one of the plaintiffs, Domenica Oolucci, had as a matter of fact received the written authority of one of the defendants, Henry 0. Krakaur, to make a sale of the premises in question.

The statute was designed to defeat the fraudulent claims *343of persons asserting authority to sell real property. Whiteley v. Terry, 83 App. Div. 197.*

It could scarcely he successfully argued that a criminal conviction could be upheld under section 640d of the Penal Code, where it is shown that a broker had procured the written authority to sell from one of the owners of real property.

In the case at bar, the learned trial justice dismissed the complaint as to the plaintiffs Flower and Goldberg upon the ground that their claims were asserted in violation of the provisions of the Penal Code and the trial then proceeded with Colucci as the sole plaintiff.

As already shown, the plaintiff Colucci did not come within the condemnation of the criminal law and so far as he was concerned, the Penal Code having no application, his right to a recovery would depend upon the proofs ordinarily requisite in actions of this nature.

Proof sufficient was adduced from which it could be inferred that all the defendants acquiesced in the agency conferred upon this plaintiff to sell their property.

Bearing in mind, however, that the action was originally brought by three parties, not alleged to' be copartners, and that the verdict in plaintiff’s favor rests upon the assumption that the plaintiff Colucci alone was the procuring cause of the sale, it is important to determine if the judgment may be supported upon the proofs adduced and if legal error was not committed in excluding certain testimony.

One of the witnesses called for plaintiff was Flower, one of the original plaintiffs, who, it would seem was the chief actor in arranging the alleged terms of sale and in securing an alleged purchaser. This witness being asked upon cross-examination if he or the plaintiff Colucci procured the purchaser, the question was excluded upon plaintiff’s objection and an exception was duly taken by the defendants.

In this we think the learned trial justice erred. It did not appear that the witness Flower was acting as the plaintiff’s agent, and on the other hand it was evident that this witness asserted a claim as a principal.

One of the issues necessarily to be determined was, *344whether the plaintiff was the procuring cause of the sale, and the defendants were entitled to probe the plaintiff’s Avitnesses as to the facts connected with that issue and to shoAv what the plaintiff’s relations to the alleged sale were.

We are also of opinion that the contradictions in plaintiff’s testimony bearing upon the terms upon which it was claimed the defendants agreed to sell would require a reversal of the judgment. At one time, the plaintiff testified that the defendants told him that they would accept $9,000 or $10,000 in cash and at another he stated that the defendants refused to accept the proposed offer of a payment of $9,000 or $10,000 in cash.

' Plaintiff’s witness Flower testified in apparent contradiction of Oolucci that he (Colucci) *“*told me that sum was required to buy these houses, but afterwards when I was there with Hr. Krakaur, Hr. Kassel (one of the defendants) told me.”

Plaintiff’s testimony bearing upon the terms of the sale and upon Avhat transpired when an alleged purchaser was brought ready and able to buy upon the terms authorized by the defendants is unsatisfactory and read in connection with that of the defendants, we are of opinion that there is lacking that preponderating force of the evidence which would justify the judgment.

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

Leventritt, J., concurs; Scott, J., concurs in result.

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

*

 See Imperato v. Wasboe, ante, p. 150.