12 Misc. 432 | New York Court of Common Pleas | 1895
This action was brought to recover commissions alleged to have been earned by plaintiff upon a sale of certain real property of the defendant. The plaintiff’s employment by the defendant as broker to effect a sale sufficiently appears from the record, but the evidence fails to support the essential fact that he was procuring cause of the sale which actually took place, and the appellant’s exceptions to the denial of his motion for a dismissal of the complaint, or the direction of a verdict, present error for which the judgment must be reversed. The facts, as shown in behalf of the plaintiff, were that by the terms of a letter received from the defendant’s general agent, Simonson, he was instructed to find a purchaser of the property at the price of $40,000, in pursuance of which instruction he introduced one Flahive, who was not, however, willing to pay the sum required. Simonson then offered to accept $33,000, and Flahive stated that he would consider the offer, and ‘Jet them know.”
Subsequently plaintiff again brought these parties together, but, according to his testimony, “nothing took place then, except that he thought to get it less, but could not; that is all that took place. There was no other meeting,—none with me.” Again he testified:
“I do not recollect that I heard anything further from Mr. Flahive, but finally he came into my office, or I met him upon the street. X saw him somewhere afterwards, and he told me that he had decided to take the house, but through another broker, who had finished the negotiations.”