Harper v. Goodall — 10 Daly (N.Y.) 269

Majority

p. 269

Edward B. Harper, Appellant, against Albert G. Goodall, Respondent.

(Decided December 5th, 1881.)

Headnote

The employment of a broker to rent the premises in which the family lives is not within the scope of the ordinary agency of a wife; and an action cannot be maintained by a broker for commissions for such services rendered at the request of the wife and daughter of the defendant, where no special authority from or ratification by him is shown.

Appeal from, a judgment of the district court in the City of Hew York for the Sixth Judicial District.

The action was brought to recover commissions claimed by the plaintiff, as broker, for procuring tenants for Ho. 339 West 34th Street, Hew York. The justice dismissed the complaint and rendered judgment in favor of the defendant. From the judgment the plaintiff appealed to this court.

Henry T. Dewey and George W. Brush, for appellant.

-D. M. Porter, for respondent.

The plaintiff had no personal transaction with defendant, neither had his clerks and agents. The latter acted upon the assumption that defendant’s wife and daughter had authority to employ them. Ho authority can be assumed in a case like the present. The employment of a real estate broker to rent the premises in which the family lives is not within the scope of the ordinary agency of the wife, and special authority or ratification must be shown. There was no ratification, for defendant is not shown to have accepted the fruits of plaintiff’s efforts with full knowledge of the facts.

The proper course for plaintiff would have been to secure a direct employment from defendant, or direct authority from him to treat with the latter’s wife or daughter on the subject. It would be too severe to hold the head of the family respon

p. 270

sible for such admissions and declarations as a shrewd broker, or his active clerk, who is “ working up the case,” may be able to extort from a wife and daughter or other members of the family.

The judgment should be affirmed.

Van Hoesen, J., concurred.

Judgment affirmed.