The fundamental question is whether the plaintiff was retained merely to render services in reference to the letting, to be paid for irrespective of their result, or whether her employment was that of a broker to effect a lease. If the former, the judgment is unimpeachable; if the latter, it cannot stand, because of the exclusion of evidence tending to show that the plaintiff was. not the procuring cause of the letting. It is impossible to doubt that the action was tried and determined as a claim for compensation in effecting a lease of the premises. The allegation of the complaint, denied by the answer, is that “the plaintiff rendered services in procuring such rental to be made.” The testimony, particularly of the witness Dennison, demonstrates that plaintiff’s claim was for effecting the lease. The trial judge submitted the case to the jury upon the issue whether the plaintiff was the procuring cause of the letting, and instructed them that if she was not the defendant was entitled to a verdict; and the opinion at general term states, explicitly, the issue to be whether “the plaintiff was the procuring cause of the letting.” At this ultimate stage of the controversy it is too late for the respondent to undertake to uphold her. judgment on a theory not suggested on the trial, nor pretended on the-appeal below. Plaintiff’s right of recovery, then, being dependent on the fact that she procured the letting, it was open to defendant, on the pleadings, to show that not the plaintiff, but another, brought about the letting, and the exclusion of evidence to the point was fatal error. Goldsmith v. Cook, (Com. Pl. N. Y.) 14 N. Y. Supp. 878.
*1026The respondent objects that the evidence offered in proof of the fact that another was the procuring cause of the contract, consisting of conversations between third parties, to which plaintiff was not privy, was incompetent; but manifestly the contention is untenable, for the negotiations were not adduced as binding the plaintiff, but as demonstrating the person by whom the letting was consummated. Hot otherwise than by transactions between third parties could the fact be established that another, and not the plaintiff, procured the contract of letting.
We should add that appellant’s point as to the invalidity of the lease is not well taken. Judgment reversed, and new trial ordered; costs to abide event. All concur.