138 A.D. 554 | N.Y. App. Div. | 1910
We think that the question whether plaintiffs’ efforts were the procuring cause of the sale by defendants of the property described in- the complaint was one of fact for the jury, and not of law for the court. Plaintiffs are a firm of real estate brokers. There was evidence from which the jury might have found that in January, 1907, the attention of one Bussell Hopkins was called to an advertisement by them' to the effect that they had for sale water-front properties located on the Hudson river. In response to his request, one of the firm called on Hopkins at 1080 Fifth avenue, in the borough of Manhattan, and told him of three or four pieces of property which they had been employed to sell, including the Banker property. This was water-front property situated ‘ near Irvington. Thereafter plaintiffs procured from one of the defendants a written description of the same, and also a map showing its location. The latter was delivered to Hopkins and the contents of the former communicated to him. In the early part of February, Hopkins, with his wife, met one of the plaintiffs by appointment on the premises and were shown over the property, including the two houses and the carriage house upon the same. At that time the ground was covered with snow. Hopkins expressed himself as pleased with the property and said that he would return home and talk with his wife’s grandfather about it and that “ if he liked the property w<fith the snow off as. well as with it on, he was a likely buyer of the property.” Mrs. Hopkins added that the property was to be for their residence, but that her grandfather was to pay for it. Shortly thereafter, at Hopkins’ request, defendants were asked by plaintiffs if they would consider an offer of $200,000 for the property, and stated through their attorney that they considered this offer too small. After the ground was clear from snow plaintiffs made several unsuccessful efforts to induce Hopkins to visit the property again, but their contract of' employment was never terminated. In April, 1907, defendants entered into a contract with Joseph. J. Lawrence for the sale of the property in question for $195,000, which contract was consummated by the delivery of the deed thereof in June. Lawrence was the grandfather of Mrs. Hopkins, and 1080 Fifth avenue was his residence. On September ninth of the same year Lawrence made a deed thereof to
Much of the testimony above referred to was contradicted by the defendants, and it may be that if the question of the procuring cause of the sale, had been submitted to the jury they would have found a verdict in their favor. All that we intend now to decide is that the question should have beeñ submitted to them.
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
Hirsghberg, P, J., Thomas and Bich, JJ., concurred; Carr, J., dissented.
Judgment and order reversed and' new trial granted, costs to abide the event,