Ettinghoff v. Horowitz — 100 N.Y.S. 1002

Majority

p. 1002

(115 App. Div. 571)

ETTINGHOFF et al. v. HOROWITZ.

(Supreme Court, Appellate Division, Second Department.

November 16, 1906.)

Headnote

Brokers—Commissions—Sale Effected Without Their Aid.

Brokers were not entitled to a commission for procuring a customer for their principal’s real estate, where he sold the premises to another before they produced their customer.

[Ed. Note.—For cases in point, see vol. 8, Cent. Dig. Brokers, §§ 45, 47, 68.]

Hooker, J., dissenting.

Appeal from Municipal Court of New York.

Action by Louis Ettinghoff and another against Henry Horowitz. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, HOOKER, RICH, and MILLER, JJ.

Jerome H. Buck, for appellants.

Charles Bienenfeld, for respondent.

This is an action for broker’s commissions alleged to have been earned by the plaintiffs in procuring a customer ready, willing, and able to purchase upon the defendant’s terms. There does not seem to be any dispute that the plaintiffs produced a proper customer, but the defendant claims that at the time the customer was produced he had contracted to sell the premises to another, and the learned court below appears to have believed his testimony upon this point. There was no conflict of evidence upon this point, and there is no evidence to show that the defendant acted in bad faith in selling the premises before the plaintiffs had produced their customer, and we are of opinion that in the absence of such evidence a broker is not entitled to commissions. If he were, then every owner of premises who employed more than one broker might be held liable for commissions without number, if the several brokers should produce customers after the premises had been sold. We think that a broker must produce his customer while the premises are in the market; that the owner does not contract to hold them for the customer to be produced by the broker, but that, acting in good faith, he may sell the premises at any time and to any customer who is willing to buy upon his terms; and that commissions may not be collected for customers produced after the premises have been sold.

The judgment appealed from should be affirmed, with costs. All concur, except HOOKER, J., who dissents.