Nichols v. Greenstreet

he regarded the values of the properties submitted for exchange as largely inflated, and he therefore told plaintiff that he would thereafter value his property for the purpose of an exchange at $100,000. Plaintiff subsequently introduced defendant to one Brooks, with whom defendant thereupon negotiated for an exchange of certain property in Staten Island belonging to Brooks for' defendant’s property in Colorado. The negotiations, in which the plaintiff did not participate, resulted in an agreement of exchange of these properties. There is no doubt that plaintiff had no discretion in respect of any terms or details of the exchange effected, but the defendant had the right to expect from the plaintiff under the contract alleged and claimed by . him the benefit of his knowledge or any information that he may have possessed concerning the Staten Island property in question. His secret agreement for compensation from Brooks put plaintiff in a position where his interest in Brooks might interfere with the duty he owed defendant to disclose to him any facts of which he might be possessed touching the value of the Staten Island property. This is unlike the cases relied upon by the plaintiff, where the courts have held that a broker may receive double commissions where it appeared that he was solely employed to find a purchaser of property upon terms fixed by the employer, or where it was understood that the broker had nothing else to do but to submit a purchaser to the principal. The reason for this rule is obvious. In such cases the broker cannot possibly be guilty of bad faith towards the employer, who either has fixed all the terms and conditions under which he will sell his property or else has stipulated personally to attend to all negotiations. There is nothing for the broker to do in such cases but to procure a party who is ready and willing to buy the property upon the terms laid down by the employer. Gracie v. Stevens, 56 App. Div. 203 , 67 N. Y. Supp. 688 , affirmed 171 N. Y. 658 , 63 N. E. 1117 ; Knauss v. Krueger Brewing Co., supra; Norton v. Genesee Nat. Sav. & Loan Ass’n, 57 App. Div. 520 , 68 N. Y. Supp. 32 . The cases just cited differ further from the case at bar in that here the defendant had arbitrarily fixed the value of his property for the purpose of exchange at $100,000. The relation of a broker to his principal is presumptively one of trust and confidence, and requires absolute fidelity to the interests of his employer; and, where it is shown that he has a secret agreement with the customer introduced by him, it is incumbent upon him to establish that his agreement for double commissions is not inconsistent with the terms of his original employment. It seems to me that the plaintiff owed an active duty to apprise defendant of anything of advantage to him that he might know concerning the property offered to him in exchange. Robinson v. Clock, 38 App. Div. 67 , 68, 55 N. Y. Supp. 976 . His agreement of employment did not permit him to assume an attitude of absolute passivity towards his employer while negotiations for the exchange of the properties were in progress, as he might do in' a case where he was limited to the mere procurement of a party who -was ready, able, and willing to buy or exchange upon terms fixed by his employer. In the case under review the plaintiff’s relations to Brooks might well have influenced him deliberately to withhold from defendant information

•detrimental to the Staten Island property. Under the circumstances here appearing I am of opinion that the complaint must be dismissed.

Complaint dismissed.