It appears that the defendant, as' a broker for the plaintiff, brought in certain customers who entered into contracts to purchase certain property, owned by the plaintiff,. for $57,000. This contract'was drawn on the 24th of May, 1906, and the plaintiff admitted that in response to the demands of the defendant he wrote into the 'contract that the defendant was to get his commission for effecting the sales of the property upon the closing of the contract.
Subsequently, in June, it appeared that the plaintiff sent the . defendant a check for $100, which he claims was a loan, but which the defendant claims was part payment of his commission, of which $470 is still unpaid. I am of the opinion that the decisión of the trial court that the $100 sued for in this action by the plaintiff was a loan was against the weight of evidence, in view of the fact that the $100 was given to the defendant subsequent to the closing of the contract, and that no evidence was introduced shoiving previous intercourse of the parties which would make such a loan probable. I think that the defendant is entitled under the evidence to the commis-. si on stipulated in the contract, and that the $100 at issue should under the evidence be regarded as a part payment of such commission.
*17The court below evidently adjudicated the case on the presumption that the commission became due only upon the passing of title, ■ whereas the contract expressly provides that it should become due “ at the time of closing contract.” The alleged loan of $100, which was subsequent to the closing of the contract, was made, therefore; after the commission was already past due, and this fact, supported by the evidence, upholds the contention of the defendant that the $100 was not a loan but merely a part payment of his commission.
We will not suggest here that the parties may find themselves in some difficulty in reference to the litigation by' reason of the fact of the pendency of the two suits, or by reason of any rules of practice relative to counterclaims, but content ourselves with deciding that the judgment under review was rendered against the weight of evidence.
The judgment of the Municipal Court is, therefore, reversed and a new trial ordered, costs to abide the event.
Hirsohberg, P, J., Jerks, Hooker and Gaynor, JJ., concurred. ■
- Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.