Fink

Separate appeals are prosecuted by defendant William Weisman and defendant Joseph Toplitzky from a judgment entered against both defendants pursuant to the verdict of a jury. The action was to recover secret profits in the purchase of four separate pieces of real property in each of which plaintiff Fink purchased a one-half interest through defendant Weisman at a price in excess of that- agreed by Weisman to be paid to the vendor. Defendant Toplitzky was interested in the transaction as a real estate broker and since the relationship between Fink and Weisman in the transactions and that between Fink and Toplitzky were substantially different we shall for the sake of clarity consider the two appeals separately.

The Weisman Appeal.

In so far as the evidence may be conflicting it is axiomatic that on appeal we must consider the evidence most favorable to respondent. Pursuant to that- rule we are justified in making the following statement of facts, although as to some of them there was a sharp conflict in the evidence:

Thereafter the Woodward Hotel was operated by Pink and Weisman as a partnership business.

After the purchase of the Woodward Hotel and in September, 1920, Pink,…