The fact is not. disputed that on the 23d of November, 1907, the defendant agreed in writing with the plaintiff as follows: “If you will close the matter on Monday next which was to have.been closed on Nov. 12th, 1907, and secure the first payment of $2,500 on that day I will give you $3,000 instead of $1,000 as heretofore agreed for your service—.$2,000 when $30,000 has been paid to me and $1,000 on final closing of contract.” The matter was closed on the following Monday and the first payment of $2,500 made. It is not claimed in the answer, nor was such claim made at . the trial, or on the argument of the appeal, that the defendant signed this agreement “ under a mistake of both parties or a mistake of the defendant. ”
As I read the record the evidence is insufficient to support a finding to that effect. I think there was sufficient consideration to sustain the defendant’s promise and that the judgment of the City Court and the determination of the Appellate Term should be affirmed.
Determination and judgment reversed, new trial ordered, costs to appellant in all courts to abide the event.