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29 Misc. 142

Rusher v. Brennan

Appellate Terms of the Supreme Court of New York

Decided October 15, 1899

Appellate Terms of the Supreme Court of New York · decided 1899-10-15

<p>Appeal — Grounds not taken below are unavailable.</p> <p>Where the defendant has moved to dismiss the plaintiffs’ case, for brokers’ commissions, upon the sole ground that they had not shown themselves to have been the procuring cause of the sale, he will not be permitted, on appeal, to advance, as a ground of reversal, the new issue that there was a failure of proof as to the value of the services.</p> <p>Trial — Failure to move to dismiss on the whole case.</p> <p>Where the defendant does not move to dismiss at the close of the whole case, he admits that there were questions of fact to be determined.</p>

Relies on 12 E.H. Smith 299 - Hopkins v. . Clark · Binsse v. . Wood

Decided 1899-10-15

Levehtbitt, J.

¶1The plaintiffs had recovery for brokerage on the sale of real estate.

¶2The only reason urged against the validity of the judgment is. failure of proof respecting the value of the services rendered by the plaintiffs. There are several reasons why the judgment cannot be successfully assailed.

¶3*143In the first place, the motion to dismiss the complaint when the plaintiffs rested, was not predicated on this ground, but was limited to the insufficiency of the evidence to show that the plaintiffs were the procuring cause of the sale. The latter ground has been abandoned, and the defect now pressed cannot be invoked for the first time on appeal. If it existed, it was incumbent on the defendant to direct attention thereto at a time when there was opportunity to supply the omission. A motion for a non-suit or a motion to dismiss the complaint, to be effectual, must specify the defects supposed to exist. Binsse v. Wood, 37 N. Y. 526, 532; Flandrow v. Hammond, 148 id. 129.

¶4Secondly, no motion was made by the defendant at the close of the case, for a nonsuit or dismissal. This conceded that there were issues of fact to be determined. Hopkins v. Clark, 158 N. Y. 299.

¶5Finally, there is no foundation for the contention that there was no proof of the value of the services.

¶6The record shows that in the course of a conversation which took place between one of the plaintiffs and the attorney and agent of the defendant, the amount of the demand was mentioned and its reasonableness so far from being questioned was acquiesced in, the attorney merely demanding that his fee be paid out of the brokerage.

¶7In no aspect of this case would interference with the judgment be justified.

¶8Judgment affirmed, with costs to the respondents.

¶9Freedman, P. J., and MaoLean, J., concur.

¶10Judgment affirmed, with costs.

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