Salzano v. Pellillo

Jul 15, 1957
Versions:4 A.D.2d 789
165 N.Y.S.2d 550
1957 N.Y. App. Div. LEXIS 4763

In аn action to recover a broker’s commission, the appeal is from a judgment of the City Court of Mount Vernon entеred after a non jury trial, dismissing the complaint on the merits. Judgment reversed and new trial ordered, with costs to appellаnt to abide the event. Respondent was a builder, developer and general contractor who was acquainted with appellant, a licensed real estate broker. Appellant’s cause of action was to recover a 5% commission based on the total price of the sale of a parcel of land in respondent’s dеvelopment plus the price of construction of a home on said plot by respondent. It was concedеd that, on April 20, 1952 the appellant brought Frank Block and Rochelle Block, his wife, who, having sold their own home through another broker, were looking for another home, to respondent’s development, introduced them to respondent аnd showed them several homes already built on the development. The evidence was in conflict ‍‌‌‌​​‌‌​‌​‌‌​​‌‌​​​​​‌​​​‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌‌​‌​‍as to whether appellant brought the Blocks to the development after that date. It was conceded that, in July, 1952, the respondеnt sold a parcel of ground in the development to the Blocks for $3,000 and thereafter constructed a house thеreon for them at a price of $29,500. Appellant was not present at the negotiations between the respondent and the Blocks that culminated in the sale. One of the purchasers, testifying as respondent’s witness, said that the agreements for the sale of the land and the construction of the house were made simultaneously. He denied that the purсhasers agreed to pay any commission to appellant. Respondent did not testify personally during the trial but, in his exаmination before trial, he conceded that appellant had earned a commission on the sale of the land, although he said that he (respondent) and the purchasers had agreed that the purchasers would pay the commission on the sale of the land (see, e.g., Metcalfe v. Gordon, 86 App. Div. 368, 370-371). It was clear that appellant asserted his right to commissions prior to the execution of the written contract between respondent and the purchasers. The trial court based its determination on the theory that, between the introduction of the ‍‌‌‌​​‌‌​‌​‌‌​​‌‌​​​​​‌​​​‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌‌​‌​‍purchasers to respondent and the eventual sale, it was appellant’s duty “ to operate as the procuring cause of the sale, that is, as the efficient рroducing agency linking the two.” Implicit in the determination was a ruling that appellant could *790not earn Ms commission without doing more than introduce the purchasers to respondent at the development as prospective purchasers of a house. There is a rule that when a broker opens negotiations between ‍‌‌‌​​‌‌​‌​‌‌​​‌‌​​​​​‌​​​‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌‌​‌​‍parties but, failing to bring the customer to the terms specified by the owner, abandons them and the owner subsequently sells to the same person, the оwner is not liable to the broker for commissions (Wylie v. Marine Nat. Bank, 61 1ST. Y. 415; Teves V. Thieringer, 281 App. Div. 752). But it does not appear that the trial court’s determination was basеd on the theory that the broker considered negotiations as hopeless and abandoned them or that negotiаtions between respondent and the purchasers were definitely ‍‌‌‌​​‌‌​‌​‌‌​​‌‌​​​​​‌​​​‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌‌​‌​‍abandoned or terminated as unsuccessful albeit temporarily. It does not appear that respondent ever terminated appellant’s oral contrаct of employment. A judgment founded upon an untenable theory of law should not be sustained (Rives v. Bartlett, 215 N. Y. 33, 37). For a broker to earn Ms сommission, it is sufficient that a sale is effected through Ms agency as the procuring cause. If he brings the parties together ‍‌‌‌​​‌‌​‌​‌‌​​‌‌​​​​​‌​​​‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌‌​‌​‍and the sale resulte in consequence, the commission is earned although the broker had no part in the negotiations between the owner and the purchaser (Travis v. Bowron, 138 App. Div. 554; Sussdorf v. Schmidt, 55 N. Y. 319; cf. Sibbald v. Bethlehem Iron Co., 83 N. Y. 378). If a broker’s communication with a purchaser brings the purchaser and the owner together and the sale results in consequence, brought about by the broker’s action as a procuring сause, the broker may be entitled to Ms commission although he did not negotiate between the parties, was not prеsent at the sale and the owner did not even know that the customer was found by the broker (Lloyd v. Matthews, 51 N. Y. 124; Kalmanson v. Callahan, 276 App. Div. 983). “The essential feature of a broker’s employment is to bring the parties together in an amicable frame of mind, with an attitude toward each othеr and toward the transaction in hand which permits their working out the terms of their agreement. They may reach that agreement without his aid or interference. * * • A broker ‘ negotiates ’ just as much when he brings parties together in such a frame of mind that thеy can by themselves evolve a plan of procedure, as when he himself carries on the discussion and personally induces an agreement to accept a specific provision” (Baird v. Krancer, 138 Mise. 360, 362-363). The duties of a broker may be vаried by contingencies and broadened or narrowed by special contract. (8 Am. Jur., Brokers, § 85; Watson v. La Vine, 275 App. Div. 791, affd. 300 N. Y. 561). When a builder and developer builds houses on his development to the specifications of purchasers, in addition to selling houses alreаdy built, it is logical that negotiations between the customer and the developer as to the price and speсifications of the house may take place and culminate in a contract, without the presence of the broker who introduced the purchaser to the developer. Although the action was tried before a court withоut a jury, the action should, in view of the nature of the ease and the conflicting evidence, be determined by a trial court upon application of proper principles of law, rather than finally by an appellate court. Wenzel, Acting P. J., Beldock, Ughetta, Hallman and Kleinfeld, JJ., concur.