Rosenstein v. Bogel — 124 A.D. 527

Majority

p. 527

William Rosenstein, Appellant, v. Henry L. Bogel, Respondent.

Second Department,

February 28, 1908.

Headnote

Principal and agent — broker’s action for commissions — facts showing performance.

A real estate broker suing for commissions makes out a prima faoie case by showing that be was employed to find a purchaser for the defendant’s land and introduced a prospective purchaser at the terms set by the defendant, that the purchase was not made because the defendant changed the terms of sale by requiring a larger cash payment, whereat the purchaser abandoned negotiations, and that the plaintiff subsequently procured' another purchaser ready and willing to pay the higher price. On such evidence it is error to dismiss the complaint.

Appeal by the- plaintiff, William Rosenstein, from 'a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 23d day of March, 1905.

William V. Zipser, for the appellant.

Kiendl Brothers, for the respondent.

The plaintiff appeals from a judgment entered at the close of his evidence dismissing the complaint. The action was for commissions. The proof offered tended to. show the employment of plaintiff to furnish a purchaser fur defendant’s premises; that the plaintiff procured a purchaser in the person of one Kleng, who was introduced to the defendant as a prospective purchaser of the premises for $36,000, $8,000 cash and the balance to be secured by a mortgage upon the property; that afterwards the defendant changed the terms of the sale and insisted on a larger cash payment equal to $10,000 ; that the proposed purchaser, Kleng, refused to make the cash payment of $10,000 and abandoned negotiations with the defendant; that the said proposed purchaser, Kleng, had funds witli which to make the $8,000 payment; that afterwards the plaintiff procured another purchaser in the person of one Siegel, who was ready and willing to take the property on defendant’s terms of

p. 528

$36,000 with a cash payment of $10,000. The rate of commission: was to be one per cent.

These facts established a canse of action, and plaintiff was entitled to recover at the close of his case as the evidence then stood. The. trial justice erred in- dismissing the complaint,-and for this error the judgment of the Municipal Court must be reversed and a new trial ordered.

Woodward, Jerks, Gaynor and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. '