Second Department, July, 1911. [Vol. 146. about forty-one pages per session. In addition, one day from eleven A. M. to two P. M., and another from ten-thirty to two P. M., were devoted to viewing the property, one day ten to two and three other days eleven A. M. to three P. M. to executive sessions. On three or four days when evidence was taken there was also an executive session, and another day was in part devoted to the preparation of the award and report. There were some thirty-four adjournments by consent, six at the instance of the corporation counsel, two to permit consideration or decision of questions by the commissioners, two to await action of engineer, two by reason of absence of a commissioner, three by reason of commissioners' illness, twelve upon request of claimant's counsel, three or more for absence of counsel, three on account of cold room, three by reason of witness' illness or inability to testify, three or more because there was no work. The corporation counsel offered some objection to or disapproval of four adjournments; on two occasions the commissioners asked for afternoon sessions. The affidavit of the commissioner in every instance shows at what hour the commission met, but so often omits the hour of adjournment that the length of many of the sessions does not appear. But the average length indicated by the hours given in the history of thirty-six sessions is roundly two hours and forty-five minutes, or less than one-half of a usual court day. I am not inclined to place the fault entirely upon the commissioners. They observed the system that has obtained in such proceedings; they were largely dependent upon the material furnished by the corporation counsel and the claimants, and those representing the interests of the city permitted the proceeding to drag through the days and years. What testimony they saw fit to provide for a session the commission took and then adjourned. On some days there was none, on some days a little, and on some a fair amount. While the average was about forty pages, on March twenty-second, in some four and a half hours, they took one hundred and fourteen pages of evidence; on April eleventh, in four hours, they received ninety-seven pages, while on April thirteenth, in four hours and twenty minutes, the record shows one hundred and forty-five pages. If there MATTER OF SIMMONS (HILL VIEW RESERVOIR, SEC. No. 1). 331 App. Div.] Second Department, July, 1911. was anything to do they did it. If not, they adjourned. It is just to notice that, regardful of public criticism of commissions in general, they did, as early as December 3, 1909, express readiness to proceed daily and their "desire to sit every day until the whole thing is completed, and if that can be done, I will be very much obliged to the Corporation Counsel, the representative of the City and also the office of Mr. Flannery," and again on December seventh the commissioners asked the counsel to "be ready four days a week and proceed as rapidly as possible." But the loitering continued, and on January fourth the commissioners expressed their disapproval of the short sessions. And still the proceeding went forward with much of its former somnolence. The representative of the city, when not consenting to or asking or abetting adjournments, joined in the general indolent conduct of the proceedings, seldom objecting to abbreviated or unemployed sessions, or opposing so mildly that the motion of the city to remove the commissioners as late as April, 1910, suggests a suitor disappointed by the rulings quite as much as the tardiness of the commission. This attempt to eliminate officers, properly nonconformable to the city's apprehension of the law and participants in its desultory and dilatory disposition of the matters in hand, delayed the sessions to October 27, 1910. The necessity and result of the disciplinary action of the city may be noted. In thirteen sessions four hundred and thirty-seven pages of evidence was taken, or an average of thirty-four pages per session, and the commissioners sat eighteen hours and ten minutes, or an average time of one hour and twentyfour minutes for each session. This excludes some parts of these days given to executive meetings. After the sessions were renewed on October twenty-seventh, the corporation counsel consented to or requested at least ten adjournments and objected to none. The opposition of the city to the payment of the sum granted may be dutiful, but an exhibition of readiness and rigorous prosecution of the proceeding might have made its present attitude unnecessary. But the commissioners had the power to organize its business and insist upon punctual attendance by the parties, prompt submission of the evidence under the penalty that follows default, and when they ask for Second Department, July, 1911. [Vol. 146. compensation their complaisance or submission cannot be substituted for the action that the law demands. For the seventyfive days, while they were engaged for an average time of less than three hours they should be paid for a half day's work at the rate of $50 per day, or $1,875; for the six days devoted to views and executive session they should be paid $300; and for days when they took evidence and also held executive sessions, and for those necessary adjournments on account of sickness or other cause excusably preventing a full day's service, $300 more may be added, making the allowance for each commissioner for services $2,475, and the order as so modified should be affirmed, without costs. JENKS, P. J., CARR, WOODWARD and RICH, JJ., concurred. Order modified in accordance with opinion and as so modified affirmed, without costs. JOHN E. WALKER, Respondent, . JAMES W. STERRY, Appellant. Second Department, July 27, 1911. Principal and agent - broker's action for commissions-negotiations of customer with principal-witness-contradicting testimony of witness. Where a landowner employed a broker to secure a purchaser and agreed that he should have commissions if a sale were made to a certain person whether effected between the broker and the customer or consummated by inducing the customer to negotiate directly with the owner, the broker may recover commissions where the sale was effected in the latter way although he did not notify the owner that he sent the customer to him. While a party may not impeach his own witness, he is not precluded from showing by direct evidence that a material fact is different from what was testified to by his witness, and the jury may find for him and against the testimony of his witness. Thus, a party may testify that a conversation took place between himself and the witness, where it relates to a material issue, although his witness has previously denied that it took place. APPEAL by the defendant, James W. Sterry, from a judgment of the Supreme Court in favor of the plaintiff, entered App. Div.] Second Department, July, 1911. in the office of the clerk of the county of Suffolk on the 6th day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes. Clarence De Witt Rogers, for the appellant. Robert S. Pelletreau, for the respondent. WOODWARD, J.: This is an action to recover a commission of five per cent upon $2,200, the purchase price of a certain piece of real estate. There was evidence which would justify the jury in finding that the plaintiff was employed by the defendant to find a purchaser of the premises in question at $2,500; that the defendant, in conversation with the plaintiff, had talked of the feasibility of selling the premises to one Sekine, a neighbor of the plaintiff, who was engaged in raising fruit, and that the defendant had given the plaintiff to understand that he should have the commission whether the sale was effected between the plaintiff and Sekine or was consummated by inducing Sekine to negotiate directly with the defendant at his office in New York; that the plaintiff did negotiate with Sekine, and that the latter subsequently called at the office of the defendant in New York and there entered into a contract for the purchase of the premises at $2,200, which contract was subsequently carried out by a delivery of a deed of the premises. The jury has found these facts, rendering a verdict for the full amount of the plaintiff's claim, and the defendant appeals from the judgment and from an order denying his motion for a new trial upon the minutes. The defendant urges, upon the authority of Waters & Son v. Rafalsky (134 App. Div. 870), that the complaint should have been dismissed, because the plaintiff, in sending Sekine to the defendant, did not notify him that he (Sekine) was the plaintiff's proposed customer, and this would no doubt be true if the plaintiff had merely showed the property to Sekine and had sent him as an entire stranger to the defendant, without any previous arrangement with the latter, but the evidence is such Second Department, July, 1911. [Vol. 146. as to permit the jury to find that the plaintiff and defendant had talked over the matter of selling to Sekine, and that the defendant had directed the plaintiff to send Sekine to him for final negotiations if the plaintiff was unable to deal with him, so that there was no necessity for a formal notification of the defendant when the plaintiff was enabled to induce Sekine to visit the defendant at his New York office- the plaintiff, in this, was fulfilling a part of his employment. Nor are we able to discover that the court erred in refusing to set aside the verdict as being contrary to the evidence. It is true that Sekine, who was called by the plaintiff, failed to substantiate the plaintiff's version of what took place; that he testified that he had had no conversations with the plaintiff in reference to the property until after he had purchased the same from the defendant, and that the plaintiff did not send him to the defendant for further negotiations, and this testimony was in harmony with the defendant's theory of the case, but we know of no rule which requires the jury to believe disputed testimony, even where the witness is called by a party. It is true, of course, that a party offering a witness vouches for his integrity, in the sense that he is not permitted to impeach him, but a party is not precluded from showing by direct evidence that a material fact is different from that testified to by his own witness, and the jury had the right to accept the testimony of the plaintiff and his wife upon the material issues, even though Sekine testified directly to the contrary. (Coulter v. American Merchants' Union Express Co., 56 N. Y. 585, 589.) This same case is, we believe, a sufficient authority for the ruling of the court in permitting the plaintiff to testify to a conversation with Sekine, after the latter had denied having the conversation. This conversation related to the material issue in the case, would have been entirely proper on the original direct examination of the plaintiff, and was not rendered incompetent because Sekine had denied having such conversation. We discover no force in the contention that the verdict was contrary to the law of the case as stated by the court in its charge. The charge was made to please the defendant; three distinct requests were charged in the language chosen by the |