Travis v. Stewart

The action was brought to recover one-half of a commission received by the defendant upon the sale of certain real estate in the city of Hew York, under an alleged agreement to divide the same.

It is stated by the defendant that the sole issue upon the trial was upon the agreement alleged in the complaint.

The fact that the defendant had made the sale and received the commission was not disputed.

The complaint alleged a copartnership between the plaintiffs and the defendant, so far as regards the transaction in dispute, and asks for an accounting and a judgment, in a specified sum, and at the opening of the case a motion was made to dismiss the complaint, on the ground that the court was without jurisdiction of the subject-matter of the action in that form, but this question was disposed of adversely to the defendant upon the statement of counsel, that no equitable relief was sought, and the complaint in question demanded judgment in a specific sum.

This motion was renewed at the close of all the testimony and denied.

*607In this we think there was no error, and the defendant does not discuss this question in his brief; the only other question, namely, the agreement to divide the commission, and whether or not it was made, as alleged, was submitted to the jury in a charge, which was eminently fair to the defendant, and the jury found in favor of the plaintiffs for the amount claimed, and interest, and no exception was taken to any portion of the charge.

We do not find in the record any reason for disturbing the verdict of the jury, and the judgment and order appealed from should be affirmed, with costs.

Fitzsimons, Ch. J., and McCarthy, J., concur.

Judgment and order affirmed, with costs.