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O'Toole v. Tucker

16 Misc. 485 Court N.Y. City Ct. English

Delivered by McCarthy, J.

Contents

Majority

p. 485
Patrick O’Toole, Respondent, V. Robert Tucker, Appellant.
(City Court of New York, General Term,
April, 1896.)

Headnote

1. Brokers — Commissions.
To entitle a broker to commissions it is sufficient that a sale is effected through his agency as its procuring cause, and if his communications with the purchaser are the means of bringing him* and the owner together, and a sale results in consequence, the commission is earned although the broker does not negotiate and is not, present at the sale. '
8.. Same.
Nor is it necessary, in such a case, that the sale must be made at the original terms given to the broker.
3. Trial — Refusal to charge.
A request to charge which, in effect, requires the court to determine a question of fact is improper, and a refusal to comply therewith is not error.
Appeal from judgment in favor of the plaintiff, entered upon a verdict. •
Martin & Weil, for appellant.
Weed, Henry & Meyers, for respondent.

This case was fairly presented to the jury, and they having found against the appellant on the evidence and the weight of evidence, we are not inclined to disturb their verdict.

p. 486
It is true that the respondent stood alone and against him was the appellant and two others, but this of itself does not signify, since the rule is that the. evidence is not judged by the number of witnesses, but by the quality of the evidence.

There was a sharp conflict, and the jury having the witnesses before them accepted the evidence of the plaintiff..

In order to entitle a broker to commission or compensation it is sufficient that a sale is effected through his agency as its procuring cause, and if his comm unications with the purchaser are .■the means of bringing him and the owner together, and the sale results in consequence, the compensation is earned, although the broker does not negotiate and is not present at the saleh Lloyd v. Matthews, 51 N. Y. 124 ; Sibbald v. Bethlehem Iron Co., 83 id. 378.

Eor is it necessary that the sale must be at the original terms given to. the broker. If the broker produces a party ready and willing and able to buy, and negotiations are then conducted between the purchaser and the owner and finally result in the sale, the broker is entitled to his commission, provided he is the procuring cause of said sale. Gold v. Serrell, 6 Misc. Rep. 124 ; Levy v. Coogan, 9 N. Y. Supp. 534 ; Atwater v. Wilson, 13 Misc. Rep. 117 ; Dailey v. Young, 13 N. Y. Supp. 435 .

When he procures a party ready to make the purchase at a -satisfactory price he has performed his obligations to the principal.

As to the- tenth request by the appellant to charge, we must hold that.there is no direct ruling, and that the appellant should have had the trial justice declare that he declined or refused to charge.

Even if we grant that his answer was a declination to charge' as requested, he was correct, since it was asking him to determine a. question of fact which was solely within the province of the-jury.

We find no error and the judgment must, therefore, be affirmed,. with costs. . ■

Van Wtoe, Oh. J., concurs.

Judgment affirmed, with costs.

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