Hausman v. Herdtfelder — 81 A.D. 46

Majority

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Max Hausman, Respondent, v. Elizabeth Herdtfelder, Appellant.

Headnote

Seal éstate agent’s commissions — not earned,' although a purchaser refuses to complete the purchase because of the owner’s misstatement as to the dimensions of the lot.

A statement made by the owner of premises fifty feet front by sixty-six feet in depth, >to a broker whom she employed to effect a sale of such premises, that the premises were fifty feet front by seventy-six feet in depth, is a mere representation and not a warranty, and, in the event of the refusal of a purchaser procured by the broker to complete his purchase because such representation ' .was not true, the broker is not entitled to recover from the owner commissions for procuring such purchaser.

Appeal by the defendant, Elizabeth Herdtfelder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the

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office of the clerk of the county of New York on the 17th day of' March, 1902, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 11th day of August, 1902, denying the defendant’s motion for a new trial made upon the minutes..

I. Newton Williams, for the appellant.

Benjamin F. Feiner, for the respondent.

The plaintiff has recovered a verdict for $620 commissions on the theory that he obtained a purchaser for the premises owned by the defendant known as Nos. 168 and 170 Orchard street, in the city of New York, situate on the southeast corner of. Orchard and Stanton streets, the dimensions being fifty feet front by sixty-six feet in depth. The premises were occupied by two old houses-, of little value. The plaintiff was quite familiar with the neighborhood and property. The defendant was seventy-three years of age and resided at 417 East One Hundred and Sixteenth streets * The plaintiff testified that he was informed by a friend that defendant desired to sell and he called at her residence and she employed him; that he asked the dimensions of thb property and she gave them as fifty feet front by seventy-six feet in depth; that he procured one Cohn, another real estate broker, as a purchaser-upon her terms. Oohn also testified that at an interview at which, he was present she represented the property to be of these dimensions. Oohn, after delivering a check for $250 on account of the purchase, refused to sign a contract because. the depth was only sixty-six instead of seventy-six feet, as had been represented to him,, and his check was returned. The defendant denied making any representation to the plaintiff concerning the dimensions of the-, premises and testified that she referred him to her attorneys.

Upon these facts we think the plaintiff was not entitled to any commissions. He was employed, not to sell a certain number of feet of land, but the premises as they were occupied and with which he was familiar; and he did not procure a purchaser ready and willing to enter into a legal contract for the purchase thereof upon, the terms offered by the owner. Assuming, as the jury have found,

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that she did inform him that the lot was seventy-six feet in depth, that was at most a mere representation and not a warranty and it does not authorize a recovery of commissions upon the theory of the cases .which hold that where the contract fails on account of the owner’s- . inability to perform, the broker is - entitled to recover. (Curtiss v. Mott, 90 Hun, 439 ; Diamond & Co. v. Hartley, 47 App. Div. 1 ; S. C., 38 id. 87 ; French v. Brush-Swan El. Light Co., 39 N. Y. St. Repr. 515 .)

It follows that the judgment and order should be reversed-, and a new trial granted, with costs to appellant to abide the event.

' Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ;, concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.