Goldstein v. Walters — 15 Daly (N.Y.) 397

Majority

p. 397

Gerson Goldstein, Respondent, against George Walters, Appellant.

(Decided December 2d, 1889.)

Headnote

Plaintiff, a broker employed by defendant to sell certain real estate, failed to induce a proposed purchaser to pay the price asked by defendant, but predicted that he would pay it at a future time. Defendant . afterwards sold the property at that price to another broker who was acting for the same purchaser; but this fact was concealed from defendant, and he believed such broker to be the purchaser. Held, that plaintiff was not entitled to commissions on such sale.

. Appeal from a judgment of the District Court in the City of New York for the Sixth Judicial District.

The facts are stated in the opinions.

August L. Martin, for appellant.

David A. Sullivan, for respondent.

[Present, Larremore, Ch. J., and J. F. Daly and Van Hoesen, JJ.]—The plaintiff was not the procuring cause of sale. There is no doubt that he made faithful efforts to induce Thomas to buy the property, but he did not succeed. The proof is that Martin & Wray were the procuring cause of sale. The plaintiff utterly failed to induce Thomas, the purchaser, to give the price that the defendant demanded and received for the property. Then Wray and Martin succeeded in getting Thomas to agree to pay the sum that the defendant had all the time named as his minimum price. The mere fact that he hazarded a prophecy that Thomas would, at some future time, accede to the defendant’s terms, does not at all aid the plaintiff. There is no room for charging collusion between the defendant and Martin & Wray, nor had the defendant notice of anything that could

p. 398

apprise him that Thomas was the secret purchaser of the property. The defendant did not sell to Thomas, to whom the plaintiff was endeavoring to sell the property. The sale was made to Martin, who professed to be, and was by the defendant believed to be, the purchaser. It is true that Martin bought for the benefit of Thomas, but that fact was studiously concealed from the defendant. The plaintiff himself conceded in his letter that he was not entitled to the commission. He knew that he did not induce the purchaser to accept the terms on which the defendant agreed to sell, and finally did sell, the property. It seems to be the opinion of some of the justices of the districtcourts that the broker who first brings the property to the notice of the purchaser is entitled to the commission, even though the broker fails to obtain the price named by the seller, and though that price is afterwards obtained by the seller through the independent efforts of another broker. That erroneous view of the law seems to have led to. the decision that was made in the court below.

Judgment reversed.

A motion was made by plaintiff at the January General Term, 1890, for a re-argument, or for leave to appeal to the Court of Appeals, on which the following opinion was rendered, February 3d, 1890.

[Present, Bookstaver and Bischoff, JJ.J—This action was commenced in a district court to recover broker’s commissions upon the sale of certain real estate, and resulted in a judgment for the plain tiff. On appeal to this court, such judgment was reversed, the opinion delivered conclusively establishing the fact that the plaintiff was not the procuring cause of the sale, but that Martin & Wray were, and further on holding that the sale was made to Martin.. The plaintiff claims that .because Martin was the purchaser he cannot at the same time be the procuring cause of the sale. We fail to see the force of this argument, .because it is an every day occurrence that a party making a purchase does so without the

p. 399

intervention of any broker, and although Martin may have acted as the agent for Thomas, this fact was concealed from the defendant. At any rate it is clear that Goldstein, the plaintiff, had failed to induce the defendant to make the sale which Martin & Wray subsequently induced him to make, and that in no event is he entitled to brokerage for a sale consummated by other parties.

The motion for a re-argument or for leave to go to the Court of Appeals is therefore denied, with ten dollars costs.