McCormick v. Hazard

136 N.Y.S. 91 | N.Y. App. Term. | 1912

Seabury, J.

The complaint alleges that on March 15, 1911, the defendant employed the plaintiff as a broker, for the purpose of effecting an exchange of certain real estate in Hew York city owned by the defendant, and that on or about the 22d day of April, 1911, the plaintiff procured for defendant a purchaser for said property, who agreed to exchange property situated in Dutchess county for the property of the defendant, and that, " at the time of making the contract" the defendant agreed to pay the plaintiff $835. The plaintiff proved that he brought the defendant to the house of Mrs. Williams, who owned property in Dutchess county, and that the contract for exchange had then been prepared, and that the defendant and Mrs. Williams agreed upon all the terms of the exchange. This meeting took place on Saturday evening, April 22, 1911. On the following day, the contract, which bears date April twenty-second, was signed by the parties. The contract was offered in evidence by the plaintiff, and excluded by the learned court below, on the ground that it was signed on Sunday, and was, therefore, an illegal contract. Upon this ground, and because the complaint alleged that “at the time of making the contract ” the defendant agreed to pay the plaintiff $835 for his services, the court dismissed the complaint. The plaintiff became entitled to his commissions when t’ parties to the exchange agreed upon the terms and conditions upon which the exchange was to be made. This agreement took place on Saturday evening, April twenty-second. The fact that the contract which the parties had entered into was not formally signed and delivered until the day following was a circumstance wholly immaterial, and, in no way, affected the right of the plaintiff to recover under his pleading. Tanenbaum v. Boehm, 126 App. Div. 731, affd., 202 N. Y. 293. At common-law, the making of a contract on Sunday is not void. Batsford v. Every, 44 Barb. 618; Miller v. Roessler, 4 E. D. Smith, 235. Section 2143 of the Penal Law, which prohibits the performance of “ labor ” on Sunday, and section 2146 of that law, which prohibits trades, manufactures, agricultural or mechanical employments on Sunday, do not condemn or render void a contract signed on that day. The Sunday laws are to he liberally construed, and acts done on that day, which do not disturb or interfere with others, and are not contrary to the design sought to be accomplished by such laws, are not illegal. Northrup v. Foot, 14 Wend. 248; Smith v. Wilcox, 24 N. Y. 354. Thus, a deed delivered on that day is sufficient to pass title. Shuman v. Shuman, 27 Penn. St. 90. And our Court of Appeals has held that a contract for the sale of property made on Sunday is not, for that reason, void. Eberle v. Mehrbach, 55 N. Y. 682. Other cases asserting the same principle are collated in a note to Batsford v. Every, supra.

We think that the evidence shows that the plaintiff completed his services on Saturday, and that his right to his commissions accrued at that time. Even if it could be. held that, in view of the allegation of his pleading, the right to his commissions did not accrue until the contract was signed, the fact that the parties to- the exchange executed that contract on Sunday did not operate to deprive the plaintiff of the fruits of his labor.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Lehman and Bijur, JJ., concur.

Judgment reversed.