103 N.Y.S. 305 | N.Y. App. Div. | 1907
Barnet. Shapiro owned houses which were-for sale. Leder, of /the brokerage firm of Leder & Zellerrneyer, called the houses and the price to the attention of Michel, of the firm of Michel & Scott. Michel made a memorandum, including the owner’s name, and went to look at the houses. Some months after, Michel & Scott attempting to call the owner, Barnet Shapiro, to the. telephone called up another Barnet Shapiro, a broker, who truthfully answered that he was “ Mr. Shapiro ” who said- that he knew about the houses and who finally made an appointment to bring Michel & Scott and the owner Shapiro into personal communication. The owner Shapiro finally agreed to sell the premises to Michel & Scott, who told the owner that they were purchasers and not brokers. When the time of closing the contract came, Michel & Scott admitted to the owner that they represented Busch, whose name they then signed to the contract, giving their own check' on account of the purchase. The premises were thereafter conveyed to Busch. The broker Shapiro then sued the owner Shapiro for commissions. The owner beset also by the claims of Leder & Zellerrneyer and of Michel & Scott, paid the amount of the commissions into the court and was relieved by order of interpleader so - that the question litigated was the contention of these three brokers. The Municipal Court gave judgment for Leder & Zellerrneyer.
Upon the record I cannot say that the court erred in excluding the claim of Barnet Shapiro, for it does -not appear that the buyer was induced by him to apply to the seller. (Metcalfe v. Gordon, 86 App. Div. 368, 370, 371, and cases cited.) If the buyer- was Busch there is not the slightest connection shown. If the buyers were in fact Michel & Scott they were in possession of the particulars, knew the name of the owner and. were actually seeking him when the accident of name and surname permitted the
I recommend that the judgment be reversed and that a new trial be ordered, costs to abide the event.
IllRSCHBERG, P. J., IIoOKER, GrAYNOR and BlOH, J.I., COnCUlTed.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.