26 Misc. 750 | N.Y. App. Term. | 1899
Lead Opinion
In his verified complaint, the plaintiff averred that the defendant employed him, as broker, to procure a purchaser for certain property; that he procured a proposed purchaser, who accepted the terms and conditions upon which the defendant, agreed to sell the premises, and that the defendant agreed, in writing, to consummate such purchase and sale. Of these asseverations, the plaintiff proved none upon the trial. He testified that he first met the defendant in the defendant’s store, in July, and offered him some property for his farm in Connecticut, and that they had some correspondence, a part, but not the beginning, of which he introduced in evidence. In a letter of July 15th, after referring to some property apparently disparaged by the defendant, he wrote: “I send you herewith the particulars of another property which may suit you better. Ho. -E. 98th Street, * * * price, $17,000, one mortgage, $li,000.” The defend
The judgment should have been given to the defendant, and it should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Fbeedman, P. J., concurs.
Concurrence Opinion
In my opinion the correspondence between the plaintiff and the defendant, as detailed by Mr. Justice MacLean, established an agreement for the exchange of the defendant’s farm for the property on East Ninety-eighth street, and if the plaintiff had proven, to the satisfaction of the trial justice, employment by the defendant, or an express or implied promise on his part to pay brokerage to the plaintiff, the latter would have been entitled to recover. The plaintiff was, however, concededly the agent of- the owner of the Ninety-eighth street property, and on his behalf proposed an exchange to the defendant. The mere fact that the transaction was not in the nature of a sale, but involved an exchange, does not impliedly charge the defendant with any liability to compensate. The record fails to disclose any evidence of employment or of a uromise to pay, hence the judgment should be reversed.
Judgment reversed and new trial ordered, with costs to appellant to abide event.