The evidence presented upon the trial below still fails to cure the omission which led to the reversal of this case by a former Appellate Term. 25 Misc. Rep. 786. Upon that appeal, the case was reversed, because the price at which the property was taken on the exchange, and upon which amount was based the plaintiff’s claim for brokerage, did not clearly appear in the record.
Here, the evidence as to the value of the property at the time, of exchange, in the procurement of which exchange the plaintiff claims to have been an important factor, is equally vague, the return failing to present any proof of a positive nature, tending to establish this value with sufficient definiteness to afford a basis for the computation of the plaintiff’s commissions.
A careful examination of the record leads us to the opinion that upon the evidence contained therein, the judgment rendered was founded mainly upon assumption, the evidence being insufficient to warrant the conclusion arrived at.
The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Present: Beekman, P. J., and Giegerich, J.
Judgment reversed and new trial ordered, with costs to appellant to abide event.