Hull v. Cardwell — 2 N.Y. City Ct. Rep. 76

Majority

p. 76

City Court.

Trial Term

June, 1884.

HULL against CARDWELL.

Headnote

The defendant as a broker rented the plaintiff’s premises to a customer of Ms for six months and five days at the agreed rental of $500 for the term. The defendant claimed brokerage for the entire year. Held, that the brokerage was limited to the agreed rental and did not extend to the entire year.

That the defendant collected $166.66 Tent for the plaintiff is conceded. The question in dispute is whether, upon a rental of six months and five days, .at the rate of $1,000 per year, the defendant is entitled to "brokerage at 2J per cent, on $500, the rental for the term, or to brokerage at that rate for an entire year. The evidence satisfies me that in the absence of an express agreement, the customary rule is to allow percentage on the actual or agreed rental. This custom is reasonable and fair, and hence legal. To give effect to a special custom to charge commissions on rent for a period of time extending beyond the term of the léase, would be to allow compensation on a theoretical, constructive or imaginary "basis rather than on that fixed by the deliberate agreement of the contracting parties. Such a peculiar custom

p. 77

is unreasonable, and cannot be enforced in the absence of proof that the plaintiff knew of its existence (Boardman v. Gillard, 1 Hun, 22 ); Bassett v. Lederer, Id. 280). The defendant has no doubt acted in good faith, and under the belief that his counter-claim was just.

The plaintiff is entitled to judgment for $166.66, less x$12.87 commission at 2| per cent, on the rent for the term, to wit, $153. Y 9.