George R. Read & Co. v. Sturges — 225 N.Y. 724

Majority

p. 724

George R. Read & Company, Appellant, v. Henry C. Sturges, Respondent.

Headnote

Bead & Co. v. Sturges, 176 App. Div. 657 , affirmed.

(Argued February 5, 1919;

decided February 25, 1919.)

Appeal from a judgment, entered March 6, 1917, upon an order of the Appellate Division of the Supreme Court

p. 725

in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint in an action to recover commissions as real estate broker for leasing real property belonging to defendant. The Appellate Division dismissed the complaint on the grounds that the plaintiff failed to show that it had been employed by the defendant; that in the only negotiations in which it participated it represented the proposed purchaser and actéd in his interest; that even if the plaintiff had represented the defendant, it did not produce a person able to carry out the contract and hence able to perform the conditions necessary to entitle him to demand a lease; that the contract required the performance of personal services by a third party as well as the person whom plaintiff produced, and a specific performance thereof could, therefore, not be enforced; that as the party it produced was not financially able to carry out the contract, an action for damages would be of no avail.

M. Linn Bruce for appellant.

John C. O’Conor for respondent.

Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Hogan, Cardozo, Pound, McLaughlin and Andrews, JJ.