Polak v. Rosenzweig Realty Operating Co. — 131 A.D. 598

Majority

p. 598

Edward Polak, Appellant, v. The William Rosenzweig Realty Operating Company, Respondent.

First Department,

April 8, 1909.

Headnote

Judgment — res adjudicata — action between other parties — broker’s commissions.

Where in an action to recover broker’s commissions for the sale of lands the complaint alleges that the defendant vendor procured the purchaser to execute the contract of sale by fraud and that the purchaser began an action to rescind the contract, which resulted in. a judgment to that effect, the latter allegation is irrelevant and should be stricken out, for the action not being between the parties or their privies, the judgment is not binding as an adjudication.

Appeal by the plaintiff, Edward Polak, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 19tli day of October, 1906, striking out paragraph 7 of the complaint as irrelevant.

John Frankenheimer, for the appellant.

Sidney Rossman, for the respondent.

The plaintiff, a real estate broker, was employed by the defendant to procure a purchaser for certain real property of which it was the owner. To procure such purchaser a contract was executed whereby the defendant agreed to convey to such purchaser the real estate described in the complaint and the purchaser agreed to .purchase the same. The complaint alleges that before the execution of this contract the defendant procured the plaintiff to sign an agreement whereby he was not to be paid his • commissions until the

p. 599

closing of the title, and that in case title did not pass to said premises, the plaintiff waived his right to brokerage; but it is alleged that this was without consideration and, therefore, not enforcible. It is further alleged that the defendant procured the said purchaser to execute this contract by fraud; that the purchaser subsequently • repudiated the contract and that the carrying out of the contract was, therefore, prevented by the defendant’s misrepresentations and wrongful acts as alleged in the complaint. The complaint then alleges that the purchaser began an action against the defendant to rescind the contract which resulted in a judgment against the defendant rescinding the contract, and it is this latter allegation that the court below has stricken out as irrelevant.

I think the court below was clearly right. The action not being between the parties or their privies, it was not binding as an adjudication and was, therefore, improperly pleaded.

It is not necessary to determine on this appeal whether this judgment would be competent evidence to prove the fraud, if fraud should become a material inquiry upon the trial. It is sufficient to say that it was not res judicata so as to entitle the party to plead it as an adjudication, and, therefore, not an allegation which the defendant should be compelled to answer.

It follows that the order appealed from must be affirmed, with ten dollars costs and disbursements.

Laughlin, Clarke, Houghton and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.