Fox v. Cammeyer, Inc.

This is an action to recover real estate brokers’ commissions for the leasing of a loft, and was originally brought against respondent Cammeyer, a corporation, which owned or controlled the loft out of the leasing of a part of which this action has arisen. The appellant, Spear & Co., had also demanded commissions from Cammeyer for the same leasing. Cammeyer admitted its liability to either one of the claimants, and upon its motion and payment into court of the amount claimed, to wit, $240, with interest, appellant was inter-pleaded in its place, and the action was continued between the two brokers to determine their rights to the money deposited.

Cammeyer had employed both plaintiffs and the appellant, as well as numerous other brokers, to procure a tenant. (The appellant, however, strongly urges that Cammeyer did not employ the plaintiffs, but the evidence is the other way.) About May 19, 1914, appellant, through its representative, Corrigan, brought the premises to the attention of

Thereafter, some time in the middle of June, 1914, Herman Moritz, the president of the Herman Moritz & Excelsior Shrinking Company, met Denzer, a representative of the plaintiffs, in Fifth avenue, and said to Denzer that he liked the Cammeyer loft, and wished that something could be done about the live steam. Denzer thereupon saw Dr. Hart and Herman Moritz and the other officers of the tlerman Moritz & Excelsior Shrinking Company, and set out to solve the problem of furnishing live steam. He obtained an engineer named Cuthbertson, who recommended a boiler man, Raisler, and the engineer and the boiler man went to the Moritz Company, and also to Dr. Hart, and proposed to install an adequate boiler for $750. In the meantime Corrigan had been working on a machine called the “Gould Booster,” which did not prove satisfactory. Whether Corrigan then went to a boiler man, or whether he learned from Dr. Hart that he was considering a boiler man, is in dispute; but it does appear that Corrigan obtained an estimate from an installer of boilers by the name of Jacobson. But Dr. Hart and the proposed lessee preferred the estimate submitted by the engineers Cuthbertson and,Raisler to that of Jacobson, because the former had successfully installed the same sort of boiler for a concern that was much larger than the proposed lessee.

The testimony of Denzer is that, after the'estimates were in, Dr. Hart wanted $6,500 for the loft, including live steam. The proposed lessees, on the other hand, were only willing to give $5,500. Denzer finally got an offer from Dr. Hart, dropping down to $6,250, and from the proposed lessees, coming up to $5,750. Denzer thereupon got the Cammeyer corporation down to $6,000, and arranged a meeting between the Moritz Company and the Cammeyer corporation, and the parties finally agreed on $6,000 and signed the lease; the Cammeyer corporation also making an allowance to the proposed lessees of $600 for a new engine, it having transpired during the ^course of the negotiations that the proposed lessees could not use their old engine unless they were able to put a plunger through the floor into the loft below. Dr. Hart asked Denzer to take this matter up with the tenant of the floor below; but the tenant would not allow this opening, unless he was paid for it, and Denzer solved this problem by getting the Cammeyer corporation to allow the proposed lessees $600 towards a new engine, which would cost $800. '

[1-3] A real estate broker, acting under such employment as appears in this case, becomes entitled to a commission only when he is the procuring cause of the sale or lease which he has been engaged to

[4, 5 j Appellant also appeals from the order of interpleader, and contends that it had the right to recover commission from the lessor, regardless of plaintiffs’ right to commission. It is conceded in the appellant’s brief that in the ordinary case of rival brokers claiming a commission interpleader is proper; but it is sought to distinguish the case at bar on the ground that the lessor, by its conduct, left itself open to liability to both rival brokers. The facts, however, do- not support this contention. The lessor in the ordinary way submitted the premises to the several brokers for rental, and they were iu no way responsible for the fact that two brokers undertook negotiations with the same prospective lessee. Each of the two brokers knew that the other was working on the same prospective tenant, and there was nothing in the lessor’s conduct to render it liable for commissions to both brokers. Appellant’s representative, Corrigan, testifies that shortly before the deal was closed the lessor’s representative told him:

“You don’t have to worry; we are taking this matter up direct with the prospective lessee, and we will do what we can do with it.”

Assuming this to be true, it cannot be construed as a promise to pay appellant in any event, and it in no way alters the obligations of the lessor. Appellant continued to make estimates to bring about a completion of the transaction, according to its own evidence, and if its efforts were the procuring cause of the lease it is entitled to the commission ; otherwise, it is not. The lessor admitted its liability to either one of the brokers, and was properly released upon the payment of the money into court and interpleading the adverse claimant. Dardondille v. Smith, supra; Trembley v. Marshall, 118 App. Div. 839 , 103 N. Y. Supp. 680 ; Rasines v. Ives, 85 App. Div. 483 , 83 N. Y. Supp. 228 ; Rogers v. Picken, 55 Misc. Rep. 199 , 105 N. Y. Supp. 281 .

The judgment must be reversed, and a new trial granted, with $30 costs to the appellant to abide the event, and order granting interpleader affirmed. All concur.