Hurd v. Lee — 132 A.D. 110

Majority

p. 110

Robert C. Hurd, Doing Business under the Name and Style of “The Southern Dutchess Realty Company,” Respondent, v. Mary E. Lee, Appellant.

Second Department,

April 30, 1909.

Headnote

Principal and agent— broker’s action for commission — facts' not justifying recovery.

One not engaged in the real estate business who learned from the husband of a landowner that his wife wished to sell and was told by the husband to get a customer, is not entitled to commission because a relative on his advice bought the property, if it do hot appear that the husband had any authority to employ . the plaintiff or the owner had any knowledge of such employment, or ratified it, or that the husband knew that the plaintiff intended to make any charge for services.

Appeal by the defendant, Mary E. Lee, from a judgment of the - County Court of-Dutchess county in favor of the plaintiff, entered

p. 111

in the office of the clerk of said county on the 22d day of Hay, 1908, upon the verdict of a jury, and also from an order bearing date the 14th day of Hay, 1908, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

William R. Lee, for the appellant.

John F. Ringwood, for the respondent.

The plaintiff has judgment in an action brought to recover broker’s commissions for the sale of real property owned by the defendant. His employment is based upon a conversation had with, the defendant’s husband. He testifies as follows: “ I told him that I was doing some business in real estate. He said,11 want to sell my place,’ and I said c I think I can get you a customer or sell it for you.’ He says, ‘ Go ahead.’ ” He said that $3,500 was stated as the price for which the property could be bought. Plaintiff informed his mother-in-law of liis conversation with the defendant’s husband, and advised her that in his opinion it was a good place to purchase, which she subsequently did. This conversation constitutes the effort of the plaintiff to sell the property. The defendant had, before the conversation narrated, caused the property to be placed in the hands of a real estate agent for sale. It does not appear that the defendant’s husband knew that plaintiff intended making any charge for his services, or that he had any authority to employ the plaintiff, or that defendant had any knowledge of such employment, or that she ever ratified it. The plaintiff had been engaged for years in the business of buying and selling cattle and produce, and the defendant had no knowledge that he was in the real estate business.

The judgment and order must be reversed and a new trial granted, costs to abide the event.

Woodward, Jenks, Gaynor and Burr, JJ., concurred.

Judgment and order of the County Court of Dutchess coun ty reversed and new trial ordered, costs to abide the event.