Opinion
January 28, 1938.
Judgment dismissing the plaintiff's amended complaint at the close of the plaintiff's case, in an action for real estate broker's commission, unanimously affirmed as to defendant Rottenberg, without costs. As to the other defendants the judgment is reversed on the law and a new trial granted, with costs to abide the event. Upon the undisputed evidence, we are of the opinion that the plaintiff made out a prima facie case that entitled it to go to the jury upon the question as to whether there had been a meeting of the minds of the parties and whether the execution of the contract had not been prevented through the refusal of the defendant corporations to proceed. As to the second cause of action, the plaintiff was entitled to go to the jury on the question of whether there was such a meeting of the minds and whether the individual defendants Nalven and Cohen had misrepresented their authority to the plaintiff's damage. As a new trial is to be had, we take occasion to point out that it was error to refuse to allow the plaintiff's witness Murphy to give in detail the work he did in bringing about the alleged meeting of the minds. Such acts and conversations are admissible, not as proof of the facts stated therein, but as evidence of the work done by the plaintiff in carrying out its contract to secure a purchaser upon terms satisfactory to the sellers. ( Homnick v. New York Dock Trade Facilities Corp., 246 App. Div. 844; Tanenbaum v. Nanes, 247 id. 907; Lockhart v. Hamlin, 190 N.Y. 132.) Other errors, caused largely by the exclusion of evidence, will probably not be repeated on another trial. Hagarty, Johnston, Adel, Taylor and Close, JJ., concur.