83 N.Y.S. 899 | N.Y. App. Div. | 1903
This action is brought to. recover $2,500-¡as commissions alleged to be due for services rendered by Thomas F. Cody, plaintiff’s assignor, in effecting an exchange of property in the boroughs, of Manhattan and Brooklyn. There is no dispute that Thomas ’ F. Cody was employed- by William Dempsey, attorney in fact for
It appears from the evidence that Mr. Dempsey, the attorney in fact of his wife, the owner of the tenement house “ Marie,” met Thomas F. Cody and requested him to make an effort to sell the Marie ” or to exchange the same for other property in such a way as to realize $35,000 or $40,000 in ready money, with which certain incumbrances might be paid off. Cody was told that no transaction which did not result in producing this amount of money would be ■of any use, and he went to work with this object in view. As a result of his labors it is conceded that a contract was entered into between Mary E. Dempsey and Florence L. E. Willmann, acting through her attorney, Frederick Beltz, on the 20th of January, 1902. This contract provided the terms for the exchange of the properties, mentioning the incumbrances, etc., and it was stipulated that this " agreement is also predicated upon the procurement by the party of the first part of a loan of forty thousand ($40,000) dollars at not over 5% interest on the said Brooklyn lots, which loan the party of the second part will endeavor to procure or cause to be procured, if possible, but at the expense and cost of the party of the first part, said expenses and cost not .to exceed two per cent of said loan and the necessary disbursements, and which loan is to be made simultaneously with the closing of title mentioned herein, but upon failure to procure said loan by either party from any source whatever each of the parties will be released from any and every
The defendants urged, however, the provisions of section 640d of the Penal Code, which provides that in cities of the first and second class, “ any person who shall offer for sale any real property without the written authority of the owner of such property, or of his attorney in fact, appointed in writing,” etc., shall be guilty of a misdemeanor, as a bar to the plaintiff’s right of recovery. It is conceded that William Dempsey was the attorney in fact of Mary E. Dempsey, the owner of the “ Marie,” and a paper was offered and received in evidence which reads as follows : “ They will take 86 st subject to 1st and 2nd mortgages. We to take 26th ward lots subject to taxes and assessments not to exceed $6,500.00. William Dempsey.” Plaintiff’s assignor testifies that this paper was made and executed by William Dempsey for the purpose of convincing Frederick Beltz, attorney for Miss Willmann, that he was authorized to enter into the negotiation, and while it is not as definite as might be desired, we are of opinion that under the circumstances of this case, the paper might be accepted as a substantial compliance with the provisions of the statute. All that the statute requires is a written authority by the attorney in fact, and if this paper was given to the plaintiff’s assignor for the purpose of showing it to Mr. Beltz, it was an authority to act in the matter. Mr. Dempsey denies that he signed the paper, but there is a decided suggestion of quibbling upon this point, and Thomas F. Cody testifies positively that the paper was signed by Mr, Dempsey in his presence, and where there is a conflict of evidence the court may not say as a matter of law that the paper was not delivered to plaintiff’s assignor as an authority for acting in the premises. The provision of the statute is highly penal, and it is to be strictly construed (Gay v. Seibold, 97 N. Y. 472), and there is no definite requirement, except that the authority
But we are persuaded that, assuming the statute to be valid, it cannot have the effect of preventing a recovery in-a case of .this character. It- is true that where the statute prohibits the doing of a particular thing, the' courts will not aid in enforcing contracts made in violation of the law, but where a contract, not unlawful in itself has been executed, and the parties have enjoyed the benefits of the contract, the mere fact that one of the parties has violated a penal statute in the approach to the contract, will not prevent a court from enforcing payment. A vested right of action is property in the same sense in which tangible things i are property, and it is ■equally protected against arbitrary interference. Where it springs froin contract, or from the principles of thje common law, it is not competent for the Legislature' to take it away. Every man is entitled to a certain remedy in the law for all Wrongs against his person or his property, and cannot be compelled to buy justice, or to submit to conditions not imposed upon his fellows as a means of obtaining it. Nor can a party by his misconduct1 so forfeit a right-that it may be taken from him without judicial proceedings in which the forfeiture shall be declared in due form. Forfeitures of. rights and property cannot be adjudged by legislative act, and confiscations without a judicial hearing after due notice' would be void as not being due process of law. (Cooley Const. Lim. [6th ed.] 443, 444.) The provision of .the Penal Code does not attempt to make it unlawful to enter into a contract of brokerage; it does not attempt to make such a contract unlawful. It simply .provides that if any per
The discussion of this question might properly end here, but the fact that the Appellate Division of this court in the first department has felt called upon to go beyond the necessities of the case in Whiteley v. Terry (83 App. Div. 197 ; 82 N. Y. Supp. 89) to controvert the decision of this division in Grossman v. Caminez (79 App. Div. 15) may' justify us in saying that we are not convinced -of any error in the reasoning of that case, in so far -as it dealt with the constitutionality of section 640d of the Penal Code, though it might properly have been held, as in the case at bar, that the contract having been executed a violation of the-penal statute did not constitute a bar to recovery. The learned first department conceding that the order before it “ must be-affirmed, without regard to the question of the constitutionality of the act of 1901,
This section of the Penal Code (§ 640d) is not an act to regulate brokers in real estate; it relates to any person who shall offer for sale real estate in cities of the first and second classes without having written authority, and makes the most harmless and innocent acts of husband, wife and children in seeking to promote the sale of real ■estate for members of their own family criminal. It is not the licensing of a class of business men ; it is not the regulation of a business in the interest of the public health, or public morals or public safety, but is an attempt to interfere with the right of the citizen to aid his fellow-men in bringing about the sale or exchange of real estate in certain localities, without any considerations of a public character to» justify it. No one can have his real'estate sold without, his active concurrencé; the owner of real estate is perfectly .safe in the enjoyment of his property until he executes the papers necessary to transfer the title, and because some individuals may have been annoyed by claims of brokers — as the defendants in the case at bar are annoyed, perhaps — is ■no reason why the rights of citizens should be invaded by criminal statutes applying only to limited portions of the State. No reason is suggested, no good reason we believe can be suggested, why
The judgment appealed from should be reversed and a new trial granted, with costs.
Goodrich, P. J, Bartlett, Hirsohberg and Jenks, JJ., concurred.
• Judgment reversed and new trial granted, costs to abide the event.
Chap. 138 (Penal Code, § 640d).— [Rep.