Richard V. Harnett & Co. v. Englander — 120 A.D. 351

Majority

p. 351

Richard V. Harnett & Company, Incorporated, Appellant, v. Bethoven Englander, Respondent.

First Department,

June 28, 1907.

Headnote

Principal and agent — broker’s action for commissions — constitutional "law.

Former section 640d of the Penal Code prohibiting offering- real property for sale without written authority was unconstitutional, and a broker’s action for commissions on an exchange of lands should not be, dismissed because he was acting without written authority.

Appeal by the plaintiff, Bichard Y. Harnett & Company, Incorporated, from a judgment of the Supreme Court in favor of the defendant, entered in. the office of the clerk of the county of New York on the 17th day of February, 1906, dismissing the complaint, and also from an order entered in said clerk’s office on the 15th day of February, 1906, setting aside a verdict in favor of the plaintiff. - -

p. 352

L. E. Warren, for the appellant.

Mark Ash, for the respondent.

The plaintiff brought this action to recover $1,000, with interest, commissions alleged to have been earned in negotiating an exchange-•of real estate. Upon the trial of the action the jury found a verdict in favor of the plaintiff,, which, on motion of defendant, was set aside and the plaintiff’s complaint was-'dismissed, on the ground that the plaintiff acted in the premises in. violation of section 640d of' the- Penal Code, and that his right of recovery was thus, defeated. It is conceded that the plaintiff did not have the written authority demanded by the Penal Code, and this court^[1] had,, at that time, held that the act in question .was not a violation of the Constitution of this State, so that the action of the -learned court in granting the order appeared to he in harmony with the law. Subsequently, however, the Court of Appeals in Fisher Company v. Woods ( 187 N. Y. 90 ) held section 640d of the Penal Code unconstitutional, ■both under the State and Federal Constitutions.^[2] There is nothing ' remaining, therefore, upon the appeal from the judgment except to.reverse the same. The order, granting the new trial should be affirpied' and the parties permitted to again 'present their prpofs and have the'law applied thereto in harmony with the latest ■ expression of the court of last resort.

The judgment, appealed from -should'be reversed, and the order so far as' it set aside the verdict affirmed and a new trial granted, with costs -to the successful party to abide event,

Patterson, P. J., McLaughlin, Laughlin' and Houghton, JJ., concurred. • 1 >

Judgment reversed, order so far as it set aside verdict affirmed and new trial ordered, with costs to the successful party to abide event. 1

* See Whiteley v. Terry ( 83 App. Div. 197 ); Fisher Company v. Woods (110 id, 890).— [Rep. i

† † See State Const, art. 1, §§,1, 6; U. S. Const, art. 1, § 10, suM. 1; Id. 14th. amendt. § 1.—[Rep.

Cases cited

Frank L. Fisher Co. v. Woods 187 N. Y. 90 N.Y. 1907-01-08 p. 352