WILLIAM CAPITAL ASSOCIATES INC v. Banque Arabe et Internationale D'Investissement, Defendant-Appellant. (1997)

Judgment, Supreme Court, New York County (Walter Schackman, J., and a jury), entered May 24, 1996, awarding plaintiff the principal sum of $250,000 as against defendant Banque Arabe et Internationale D'Investissement (BAII) and dismissing plaintiff's claim and BAII's cross claim against defendants Clifton S. Harrison and Teitelbaum Partners, Ltd., unanimously affirmed, with costs.

BAII's present argument that the court erred in its apparent authority charge, or, in the alternative, that there was insufficient evidence of its subsidiary's executives' apparent authority to bind it to any agreement, is unpreserved either by exception to the charge or by a motion directed to the sufficiency of the evidence, and we decline to consider it (Douglas Elliman-Gibbons & Ives v. Kellerman, 172 A.D.2d 307, 568 N.Y.S.2d 389, lv denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409).   That there was some discrepancy in the testimony with regard to additional compensation in the form of an equity percentage in the subject real property does not render the terms of the oral agreement indefinite, inasmuch as there was clear testimony as to the $250,000 fee that plaintiff sought, which was the only compensation as to which the jury was charged.   The court's questioning was designed to clarify the issues and did not amount to the type of repeated prejudicial intrusions that have been found to prevent the jury from considering the evidence in the “ ‘calm untrammelled spirit necessary to effect justice’ ” (cf., e.g., Campbell v. Rogers & Wells, 218 A.D.2d 576, 579, 631 N.Y.S.2d 6).   We have considered BAII's other contentions and find them to be either unpreserved or without merit.

MEMORANDUM DECISION.