83 N.Y.S. 808 | N.Y. App. Div. | 1903
The plaintiff’s action is for a broker’s commission on the sale of Teal estate. The complaint alleges that the plaintiff, on the defendants’ employment to procure a purchaser of the Pavilion Hotel at -or near St. George in the borough of Richmond at a price acceptable to them, did procure Charles Rosenberg as such purchaser. The answer admits the ownership of the property by the defendants and its sale to Rosenberg, and denies every other allegation of the •complaint.
The evidence given on the trial was sufficient to justify the jury in concluding that the plaintiff was employed by the defendants to find a purchaser for the property at a price satisfactory to them, he to receive a commission of two and a half per cent unless the price received was $47,000 or over, in which event he was to receive $2,500. The asking price was to be $50,000. The employment
It was undisputed upon the trial that the defendants did employ the plaintiff to procure a purchaser and that he was the first to call Rosenberg’s attention to the property, and this conversation in which the defendant who negotiated the employment admitted that ' on a sale to Rosenberg at the price of $30,000 the plaintiff was entitled to his commission, was súffieiént to warrant-the jury in finding that the plaintiff was not limited to finding a purchaser at $47,000, but that the employment was as set up in the complaint. This is the logic of the decision in Ware v. Dos Passos (162 N. Y. 281), followed by this court in Palmer v. Durand (62 App. Div. 467). The admission is evidence supporting the plaintiff’s cause of action, and being sufficient to establish both the fact of the broker’s
The defendants claimed that the sale was made through the agency of two brokers, Fred W. Janssen and Goodman Freedman, to each of whom the defendants paid a commission with full knowledge, as the jury may have found, that the purchaser was the plaintiff’s customer. It is unnecessary to recite the circumstances in .detail by which these agents and Rosenberg came into contact. The facts presented a fair issue to the jury on the question of procuring cause independently of the admission referred to; this issue was fairly submitted to them by the learned trial justice, and in view of the two decisions hereinbefore cited, which expressly hold that an admission by the seller that the broker is entitled to the commission is sufficient proof that he has been the procuring cause, the finding of the jury in the plaintiff’s favor cannot be disturbed.
The fact that the plaintiff did not inform the defendants that Rosenberg was his customer is not necessarily controlling. This was held in Lloyd v. Matthews (51 N. Y. 124). The court said (p-. 132): “It is sufficient to entitle a broker to compensation that the sale is effected through his agency as its procuring cause; and if his communications with the purchaser were the. cause or means of bringing him and the owner together, and the sale resulted in consequence thereof, the broker is entitled to recover.” And on the same page, referring to a refusal to charge that the seller is entitled to know that the party with whom he is dealing is a customer of the broker if such be the fact, the court said : “ The sixth proposition is not correct. It is to be understood, in the connection in which it is presented, as declaring that, although a party is brought, through the agency and instrumentality of the broker, into a negotiation and dealing with the owner, which actually results in a sale, yet the broker is not entitled to compensation, unless it is made known to the owner that the purchaser is his customer. That is not true. It is sufficient that the. purchaser is in fact such customer.”
The case of Sussdorff v. Schmidt (55 N. Y. 319) is to the same effect. And in Wylie v. Marine National Bank (61 N. Y. 415) the doctrine was repeated, the court saying (p. 416): “ It is not indispensable that the purchaser should be introduced to the owner
It is not questioned but that the fact that the owner does not know that the purchaser is the customer of his broker is an important one, having a proper bearing upon the determination of "who in fact was the procuring cause of a sale, and it would be easy to suggest circumstances in which the fact might be deemed controlling; but in this particular case the evidence not only sustains the finding of the jury that the plaintiff was the procuring cause, but in view of the speedy sale to Rosenberg after the plaintiff had called his attention to the property, almost tends to excite a suspicion that some one connected with the consummation of the transaction was inspired by a desire to deprive him of the benefits of his employment.
The fact was developed that Rosenberg paid to Janssen and Freedman each the sum of $1,000 as a sort of bribe to induce them to procure the sale of the property to him at the sum of $30,000, and the fact that the learned trial justice remarked when Freedman confessed the fact while on the stand, “ You ought not to have had a commission from anybody. A broker who has no more business honesty than that,” to which remark the defendants excepted, is •urged in support of the claim that the court was hostile and unfair in his attitude towards them. Just previous to the remark the witness had testified that the property had been placed in his hands to sell for $50,000, and in effect that because of Rosenberg’s offer of $1,000 he had tried to get it for him at $30,000. The court then ■asked him the question: “ Do you mean to say that you- think that •is the sort of good faith that a broker owes to a man who puts his "property in his hands to sell for him, when he tries to get it from the seller as cheap as he can ? ” and the witness answered: “ It is not good faith, I don’t think.” Whatever, criticism the remarks of the court may legitimately invite, I can see no evidence of. hostility or Unfairness to the defense that the plaintiff was not the
The learned counsel for the appellants claim that the defendants did not receive a fair and impartial trial, in that the learned court frequently examined the witnesses in a spirit of opposition and hostility to the defense. While the practice by a court of interjecting a series of questions on the examination of each witness may easily grow into an abuse, calling for reversal in a proper case, what was
. Other matters assigned as gréjind- of error have been examined, and none found requiring that the case should be retried.
The judgment and order should, therefore, be affirmed.
Goodrich, P. J., Woodward, Jenks and Hooker, JJ., concurred.
Judgment and order affirmed,yyith costs.