Kennon v. Poerschke — 148 A.D. 839

Majority

p. 839

Elijah Kennon, Respondent, v. Edward R. Poerschke and Mary Fuchs, Appellants.

First Department,

February 2, 1912.

Headnote

Principal and agent — employment of broker by person having no authority — liability for commissions.

Where a third person without authority from, or knowledge of, the owner of lands employs a broker to procure a purchaser, he is personally liable to the broker for commissions when a sale is effected. But the owner himself is not liable.

Appeal by the defendants, Edward R. Poerschke and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of May, 1911, denying the defendants’ motion for a new trial made upon the minutes.

William R. Hill, for the appellants.

Adolph Freyer [ Jacob Klein with him on the brief], for the respondent.

This is an action on an assigned claim of one White, a real estate broker, for commissions, on the sale of real estate owned by the defendant Fuchs. The employment of plaintiff’s assignor was by the appellant Poerschke. There is no evidence that he was authorized by the owner to employ the broker, or

p. 840

that the -.owner fcnew«2r .had hem informed ,at rany time prior to the -sate that the plaintiff’-s aasigmor'fcsd heen employed as a broker or had heen instrumental in effecting a sale. The owner cannot be held liable to a broker for commissions on mere proof of the fact that the broker was instrumental in procuring a purchaser for the premises where there is no evidence of employment, and the purchaser .comes to the -owner through another person with whom all of the negotiations, so far as the owner is concerned,, were had. It does not appear what interest, if any, the appellant Poerschke had in the premises, hut the evidence tends to show an employment by him of plaintiff’s assignor as if he were-the owner, and that plaintiff’s assignor obtained a purchaser for the. premises on his terms and that is sufficient to sustain the verdict against him.

The judgment and order appealed from, therefore, as to the -defendant Poerschke, should he affirmed, with costs to the respondent. For the reasons already assigned, however, the judgment and order must he reversed as to the appellant Fuchs -and a mew trial granted, with costs to her to abide the-event.

Ingraham, P. J., McLaughlin, Clarke and 'Scott, JL, concurred.

As to defendant Poerschke 'judgment affirmed, with costs. As to -defendant Fuchs judgment and -order reversed and new trial ordered, with -costs to her to abide -event., -Order to be settled on notice. ••