Diamond Cattle Co. v. Stevick

Headnote

Principal and agent — action to recover alleged secret commission received by agent from purchaser of property of principa l — counterclaim for commissions.

Diamond Cattle Co. v. Stevick, 199 App. Div. 15 , affirmed.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 12, 1922, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was brought by plaintiff to have it adjudged to be the owner of 481 shares of the capital stock of the Rock River Petroleum Company issued to the defendant Stevick and held by the New York Trust Company under a pooling agreement. The petroleum company and the trust company are nominal parties defendant. Plaintiff claimed that, while acting as its agent for the sale of the property described in the complaint, Stevick received a secret profit or commission from the. purchaser in the form of the stock in question. Stevick’s answer contained various denials and affirmative averments, and also a counterclaim in which he asked for a money judgment against plaintiff of $9,750, representing the balance of a cash commission of $10,000 which he alleged was due him on the sale. All of the issues were determined, at Special Term in favor of the plaintiff. The said stock, which was finally fixed at 400 shares in amount, was adjudged to be the property of the plaintiff, and Stevick’s counterclaim for the balance of his cash commission was dismissed. The Appellate Division reversed the judgment so far as it decreed the ownership of the stock to be in the plaintiff, and affirmed it as to the dismissal of the counterclaim.