#### Bernard Badanes, Appellant, *v.*Frank Feder and Aaron Smith, Respondents.

(Supreme Court, Appellate Term,

April, 1905.)

Appeal — Order did not specify grounds — Presumption — Action for broker’s commissions — Apparent admission of liability — Right to explain.

Where an order setting aside a verdict and granting a new trial does not specify the particular grounds upon which it was granted, this court is bound to assume on appeal from such order that it was granted upon exceptions taken upon the trial. (Rule 31 of the General Rules of Practice.)

Where, in an action for broker’s commissions upon the sale of real estate, there is received in evidence on plaintiff’s behalf and in corroboration of his testimony that he had been employed to make and had made the sale, a paper signed by defendants after the purchaser had agreed to take the property, wherein they agreed to pay plaintiff’s commissions, and the defense is that such agreement was in fact made with the purchaser, at whose request plaintiff’s name was inserted therein, the defendants are entitled to show the circumstances attending the making of the apparent admission of plaintiff’s story, though the transaction did not take place in his presence.

Appeal from an order made at a Trial Term of the City Court of the city of New York vacating and setting aside a verdict of a jury rendered in plaintiff’s favor and the judgment entered thereon, and granting a new trial.

J. A. Seideman, for appellant.

Strasbourger, Weil, Eschwege. & Schallek (Emanuel Eschwege, of counsel), for respondents.

Scott, J.

This is an appeal from an order setting aside a verdict and ordering a new trial. The order did not specify the. particular grounds upon which it was granted, and imposed no costs as a condition. We are therefore bound to assume that it was granted upon exceptions taken *92upon the trial (Rule 31) and. the appeal has heen argued upon the assumption that such is the fact. Our sole inquiry therefore must be whether or not any exceptions were taken which justified the order. The action was for broker’s commissions upon the sale of real estate. The plaintiff’s evidence was that he was authorized in writing to obtain a purchaser for defendants’ property; that he did obtain a purchaser in the person of one Cooper; that the defendant agreed to pay him a commission of $350 for procuring a sale, and that after Cooper had agreed to purchase the property defendants signed a páper wherein they agreed to pay plaintiff the amount/ of commission when title should be taken and that title was subsequently taken. The defense relied upon was that defendants’ agreement to pay commission was made with Cooper and not with plaintiff; that Cooper was the procuring cause of the sale; that plaintiff’s name was inserted in the written promise to pay at Cooper’s request and for his benefit, and that Cooper waived or relinquished his claim for commission. There was a sharp conflict of evidence as to whether plaintiff was ever employed to make the sale, and as to whether he had anything to do with it except to act as a messenger for Cooper. Upon the evidence on these points the jury might have found either way. There is no reasonable doubt however that on February 15, 1904, the defendants agreed with Cooper for the sale of the property and received from him a check for $150 to bind the agreement. The actual contract was afterwards made with one Chmelniker who testified that he bought tire property in partnership with Cooper. Upon the plaintiff’s theory of his cause of action his right to the commission became perfected on February 15th when Cooper agreed to purchase the property. It was after this that the defendants signed the paper agreeing to pay plaintiff’s commission when title should pass. This paper did not constitute the contract for commissions, but was relevant and important only as corroborative evidence of plaintiff’s testimony that he had been employed to make and had made the sale. The evidence was conflicting as to the circumstances under which the paper was signed. The plaintiff testified that it was *93given to him by one of the defendants a couple of days after Cooper had agreed to purchase the property, and that defendants’ excuse for postponing the payment of the commission was that Cooper had only paid $150 on account of the purchase. The defendant who signed the paper testified that it was signed on the night before the formal contract was made and then delivered to Cooper, and that no-one was present except himself and Cooper. He was then asked what occurred when the paper was signed, and an objection to the question on the ground that the transaction was not in the presence of the plaintiff was excluded. In our opinion the exception to this ruling justified the ■order setting aside the verdict. As has been pointed out the significance of the paper, known in the case as Exhibit D, was that it appeared to corroborate plaintiff’s claim that ■defendants had employed and recognized him as the broker in the transaction—that it was in effect an admission of his story. It is a general rule that a party against whom an admission is sought to be shown has the right to show the whole admission and the circumstances attending its making. In testing the admissibility of the evidence sought to be elicited, we must accept the defendants’ evidence that the paper was given not to plaintiff but to Cooper and that plaintiff was not present. We have therefore the case of an apparent admission made to Cooper, that Badanes, the plaintiff, was entitled to the commission for the sale of the property. It seems quite clear from this point of view that defendants should have been permitted to show the circumstances attending the making of the admission. It follows that the order was right and must be affirmed, with costs.

Leveetbitt and Greeebaum, JJ., cob cur.

Order affirmed, with costs and disbursements.