Thompson v. Jackson-Steinway Co.

Headnote

Thompson v. Jackson-Steinway Co., 167 App. Div. 898 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 5, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. In February, 1906, the defendant John M. Thompson and one George B. F. Randolph, now deceased, as brokers, negotiated a contract for the sale of a tract of property in Long Island City, containing 375 lots, for the sum of $460,000. The vendor in this transaction was the Pennsylvania Terminal Real Estate Company, and the purchaser was William N. Heard, who acted as a dummy for the real principals. The defendant Jackson-Steinway Company was subsequently organized and took title to the property upon the closing. For their services in the transaction John M. Thompson and Randolph were entitled to a brokerage commission of $11,500. This amount, together with an additional $1,000 in cash contributed by Randolph was turned in by them to the defendant Jackson-Steinway Company, and on April 21,1906, that company by a formal written contract dated on that day employed these brokers as its agents for the management and resale of the property in question. By the terms of this contract the company stipulates to pay the brokers for the services to be rendered by them twenty-five per cent of its profits on resales of the property, such profits to be ascertained and paid upon an audit of the company’s books at the end of its fiscal year. By a series of mesne assignments from John M. Thompson the plaintiff became vested on November 30j 1906, with the right to forty per cent of the profits accruing to the former under the contract. For an accounting as to such share this

action was brought. The Special Term held that the books of the defendants did not show any profits; that the plaintiff had no right to an accounting in the then state of the enterprise and that the action had been prematurely brought.