Misc.] City Court of New York, April, 1896. cupied, and remained so for a period of ten days, unless by consent of the defendant, the policy was void. There is no waiver indorsed upon or added to the policy, nor is there any testimony even to show that such a waiver was made by defendant or any duly authorized agent. The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event. VAN WYCK, Ch. J., and McCARTHY, J., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. PATRICK O'TOOLE, Respondent, v. ROBERT TUCKER, Appellant. (City Court of New York, General Term, April, 1896.) 1. Brokers - Commissions. To entitle a broker to commissions it is sufficient that a sale is effected through his agency as its procuring cause, and if his communications with the purchaser are the means of bringing him and the owner together, and a sale results in consequence, the commission is earned although the broker does not negotiate and is not present at the sale. 2. Same. Nor is it necessary, in such a case, that the sale must be made at the original terms given to the broker. 8. Trial-Refusal to charge. A request to charge which, in effect, requires the court to determine a question of fact is improper, and a refusal to comply therewith is not error. APPEAL from judgment in favor of the plaintiff, entered upon a verdict. Martin & Weil, for appellant. Weed, Henry & Meyers, for respondent. MCCARTHY, J. This case was fairly presented to the jury, and they having found against the appellant on the evidence and the weight of evidence, we are not inclined to disturb their verdict. City Court of New York, April, 1896. [Vol. 16. It is true that the respondent stood alone and against him was the appellant and two others, but this of itself does not signify, since the rule is that the evidence is not judged by the number of witnesses, but by the quality of the evidence. There was a sharp conflict, and the jury having the witnesses before them accepted the evidence of the plaintiff. In order to entitle a broker to commission or compensation it is sufficient that a sale is effected through his agency as its procuring cause, and if his communications with the purchaser are the means of bringing him and the owner together, and the sale results in consequence, the compensation is earned, although the broker does not negotiate and is not present at the sale. Lloyd v. Matthews, 51 N. Y. 124; Sibbald v. Bethlehem Iron Co., 83 id. 378. Nor is it necessary that the sale must be at the original terms given to the broker. If the broker produces a party ready and willing and able to buy, and negotiations are then conducted between the purchaser and the owner and finally result in the sale, the broker is entitled to his commission, provided he is the procuring cause of said sale. Gold v. Serrell, 6 Misc. Rep. 124; Levy v. Coogan, 9 N. Y. Supp. 534; Atwater v. Wilson, 13 Misc. Rep. 117; Dailey v. Young, 13 N. Y. Supp. 435. When he procures a party ready to make the purchase at a satisfactory price he has performed his obligations to the principal. As to the tenth request by the appellant to charge, we must hold that there is no direct ruling, and that the appellant should have had the trial justice declare that he declined or refused to charge. Even if we grant that his answer was a declination to charge as requested, he was correct, since it was asking him to determine a question of fact which was solely within the province of the jury. We find no error and the judgment must, therefore, be affirmed, with costs. VAN WYCK, Ch. J., concurs. Misc.] City Court of New York, April, 1896. JAMES TALCOTT, Appellant, v. D. C. COWDRY et al., Respondents. (City Court of New York, General Term, April, 1896.) Nonsuit- When proper. Where a verdict in favor of the plaintiff has been set aside on the ground that there was no evidence to warrant it, and the proofs on the second trial are substantially the same, a nonsuit is proper. APPEAL by plaintiff from judgment of nonsuit. L. B. Bunnell, for appellant. Blumenstiel & Hirsch, for respondents. VAN WYCK, Ch. J. This cause was first tried in June, 1887, and a verdict returned for plaintiff, which, however, was set aside by the trial judge, after investigation, in a well-considered opinion, concluding with the statement that there was no evidence whereon the jury could base a verdict for plaintiff, and an appeal was taken by plaintiff from the order setting aside the verdict, but the same was affirmed in November, 1887. The second trial of this cause was held in January, 1896, and resulted in the judgment of a nonsuit from which this appeal is taken, and upon this second trial the plaintiff did not make out a stronger case than he did on the first trial, which the trial judge held did not entitle him to go to the jury, and this was sustained by our General Term of November, 1887. The judgment of nonsuit is affirmed, with costs. FITZSIMONS and MCCARTHY, JJ., concur. City Court of New York, April, 1896. [Vol. 16. ANNIE FINKLESTEIN, Respondent, v. JACOB BARNETT, Appellant. (City Court of New York, General Term, April, 1896.) 1. Breach of promise-Effect of failure to deny allegations. Failure of the answer in an action for breach of promise to deny the allegations of the complaint as to the existence of mutual love and affection constitutes an admission thereof, and renders proof thereof unnecessary. 2. Same- Evidence. In an action for breach of promise, evidence tending to show that defendant induced plaintiff to give him the custody of all her money and spent the same is admissible as part of the res gestae and to show his intent. 3. Same-Damages. Where it appears in an action for breach of promise that the defendant induced the plaintiff to allow him to take charge of all her money, spent the same, and upon her refusing to give him more broke the engagement, a verdict for $1,500 is not excessive. APPEAL by defendant from judgment on verdict and order denying new trial. Al. & Chas. Steckler, for respondent. Abram Kling, for appellant. VAN WYCK, Ch. J. This is an action for breach of promise of marriage, and the complaint alleges, first, that plaintiff was and is sole and unmarried; second, that " in March, 1894, she first formed the acquaintance of defendant, their acquaintance thereupon ripening into mutual love, regard and affection." Neither of these alle gations were denied in the answer; hence plaintiff could not be forced to substantiate either by proof. The defendant-appellant contends that it was error for the court to decline his request to charge the jury "that there is no evidence on the part of the plaintiff to show that this acquaintance ripened into mutual love and affection," and again in the court's refusal to charge his request" that plaintiff did not testify there was any love between her and defendant." The defendant had admitted, by not denying in his answer the second paragraph of the complaint, that this acquaintance had ripened into mutual love and affection, and no Misc.] City Court of New York, April, 1896. evidence was required on the part of plaintiff to show the same, nor need she testify as to such. Appellant contends that this allegation of the complaint as to mutual love and affection was not an allegation of the cause of action, or a part thereof, but of a mere element of damage. So, too, would be an allegation of plaintiff's seduction by the defendant, and yet it would require no proof at trial to substantiate such an allegation if admitted by the answer. The admission by the defendant's pleading that the acquaintance had ripened into mutual love and affection took that question from the realm of dispute and eliminated the trial thereof from the case. This conclusion disposes of appellant's contention regarding his challenge to the cause of the juror who said it would not make any difference in the rendition of his verdict, if at the time of the engagement there was no affection on plaintiff's part for the defendant. It was not error to admit evidence of all the facts and circumstances attending the first meeting and engagement of the parties, including the inquiry then made by defendant whether she was worth anything, her reply that she had saved up $500 and when she got married she expected to furnish her house with it, his request that if they became engaged he would like to have this money in his care until they were married; that the money was given to him for safe-keeping; that he refused to marry her, and told her he would not marry her unless she gave him more money; that she replied that she had given him $500, every cent she had, and that he said that that money had went away in smoke. Defendant asked to have stricken out the testimony as to the $500, and the court ruled "Excluded, except to show the general transaction between the parties. Allowed only to show the entire transaction." And, again, the court stated, "The $500 cannot be considered in fixing the damages, but is only permitted in connection with the entire transaction," and defendant moved to strike out what had been testified as to the $500, as it cannot be recovered in this action, and "asks the court to instruct the jury that the $500 is not a subject-matter in this action, and cannot be considered by the jury," and "the court here informed counsel that it would so instruct the jury," and again, after both parties had closed, defendant requested the court to "charge the jury that the $500 claim or the return of the money has nothing to do with this case, |