When the plaintiff rested, a motion was made to dismiss the complaint upon the grounds that the plaintiff had not made out a prima facie case by showing an employment as a broker by the defendants, or either of them, and had not shown that he was the efficient or procuring cause for the sale of the property to the purchaser, Mr. Price. As the case then stood, the plaintiff had testified with respect to -his employment as broker, and what he had done thereunder in calling the attention of Price to the property, from which testimony the jury might infer that he was the procuring cause of the sale. He having been corroborated, in many of the essential features necessary to be established, by two other witnesses, we think a prima facie case was made out, which justified the denial of the motion to dismiss the complaint.
The defendants then assumed the burden of introducing their defense, and, while the defendant Pomeranz admitted the employment of the plaintiff as broker, he and the other defendants and the purchaser contradicted the plaintiff and his witnesses on every material point. There was thus presented, at the close of all the testimony, a case which, under the rule laid down by the Court of Appeals in McDonald v. Metropolitan Street R. R. Co., 167 N. Y. 66, 60 N. E. 282, was properly to be submitted to the jury. Apart from that authority, however, and having in mind the general principle that upon conflicting evidence the jury must pass, and that their verdict, where the issue turns entirely upon the credibility of the witnesses, must determine upon which side the truth is, we find this case peculiarly one within the province of the jury to pass upon; for, considering the way in which the witnesses testified, there was justification for that portion of the charge wherein the learned trial judge said:
“It is very apparent to you, as it is to me, that one side or the other has committed deliberate perjury. There is not any chance of escape; there is not any chance for error. One side.or the other has come here and has tried to succeed in this litigation by lying to you. The burden is on you to determine who is telling the truth here.”
The verdict was for the plaintiff, and we have no right to disturb that verdict, unless, as further contended by the appellant, it was *941against the weight of evidence. In considering this question, we are, to some extent, required to pass over the same road that was traveled by the jury, and, talcing into consideration not alone that there were one or two more witnesses on the side of the defendants, to determine whether, as against this, there was sufficient corroboration and probability with respect to the plaintiff’s version to offset the vigorous onslaught which, by a contest of every material point, the defendants made upon the plaintiff’s position. As already stated, the plaintiff, upon the subject of employment, was corroborated. by the defendant Pomeranz; and the jury were not, in view of that fact, compelled to accept as final the testimony of Mr. and Mrs. Burstein that they did not even know the plaintiff, which, of course, implied that they did not employ him, and had never seen him with respect to the sale of the property. Upon this branch, therefore, of employment, the jury were not obliged to accept the statements of the Bur-steins, nor would we be justified in disturbing their verdict, which, upon conflicting testimony, resolved this issue in the plaintiff’s favor.
The closer question is whether or not the plaintiff was the procuring cause of the sale. Upon this branch we have not alone the plaintiff’s testimony, but also that of two witnesses, father and son; the former of whom says that he was asked by the purchaser to appraise the property, and that such purchaser told him that it had been brought to his attention by the plaintiff, of which fact the witness informed Mr. Pomeranz at the time he inspected the building. The son supports the father’s statements as to these declarations of the purchaser. On the other hand, the purchaser swore that the plaintiff had nothing to do with his buying the property, but that through other brokers he heard of it, and went to the Bursteins’ house on a certain night, and then and there closed the transaction. This is to some extent corroborated by the defendants, who proved the injection of other brokers into the transaction, and, inferentially, that they had paid them for effecting the sale. In determining the weight and credibility of this testimony as to the consummation of the sale and the service of other brokers, the motives of the witnesses were important, and the jury had to consider not alone the fact that these brokers may have received the commission, but their relation to the parties. In this connection it was shown that one of the brokers named was a brother-in-law of the purchaser, and that another not only had other dealings with Mr. Burstein, but subsequently became his partner. It was testified that there were four brokers who were the procuring causes of the sale, but only the two having the relations mentioned to the parties were called as witnesses, although, in excuse for failure to call them, it was stated that one was at the time of the trial in-Europe. Again, as affecting the testimony of the Bursteins that they did not know the plaintiff, and had no dealings with him in respect to the property, we have to weigh the testimony which they would have the jury believe, that, without previous knowledge of his existence prior to the day of the ■sale, a customer presented himself at their house, prepared to negotiate, make a deposit, and close a contract at an evening meeting, at which, according to the purchaser, he for the first time had formed *942the idea of buying. It is unnecessary to dwell further upon the inherent probabilities or improbabilities of the different versions of the defendants and the plaintiff, respectively, more than to say that, whatever might be our own view if we were the triors of fact, there was here such a direct conflict, depending so much upon the credibility of the witnesses, and this in turn so dependent upon their appearance and demeanor on the stand, that we would not be justified on this branch of the case, any more than on the other, as to employment, in setting aside the jury’s verdict.
We have examined the exceptions taken to the rulings, but do not think, save as to one, that they require any other comment than to state that we regard them as without merit. The one which we think calls for more discussion presents. the point whether or not the complaint should have been dismissed as to the defendant Pomeranz. We have noted with respect to this subject that the amount of consideration paid by the Bursteins to Pomeranz was small compared with what would presumably have been the value of a half interest in this property, and that, notwithstanding the claim that Pomeranz had sold to the Bursteins such interest before the contract with the purchaser was made, he subsequently joined in the deed to the purchaser. As already intimated, however, the defendants acquiesced in the submission to the jury of this subject of the liability of the defendant Pomeranz, and we think that the question now urged was not raised at the trial in súch a way as to make it available upon this appeal.
Upon the whole case, therefore, we think that the trial judge properly submitted the issues to the jury, and that the verdict is one which we have no right to disturb. The judgment and order accordingly should be affirmed, with costs.
PATTERSON and HATCH, JJ., con¿ur.