Hyperlawhypertext legal database Brundage v. Mccormick 23 N.Y.S. 262

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Brundage v. Mccormick

23 N.Y.S. 262 Court N.Y. Gen. Term Decision date 1893-05-08 English

Delivered by BARNARD, P. J.

Contents

Majority

p. 262
(69 Hun, 65.)
BRUNDAGE v. McCORMICK.
(Supreme Court, General Term, Second Department.
May 8, 1893.)

Headnote

Real-Estate Agent—Commissions.
Where a real-estate agent, who is employed to sell property, introduces to his principal a person desiring to buy, but who at the time is unwilling to agree upon the terms offered, but on subsequent negotiations, carried on at the agent’s directions, agrees upon terms, and consummates the trade, the agent is entitled to his commission.
Appeal from Kings county court.
Action by Henry E. Brundage against Ruth M. McCormick for commission on sale of real estate. Judgment was rendered for plaintiff, and defendant appeals.
Affirmed.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
D. Nemirs, for appellant.
J. R. McDivitt, (Francis Stockton McDivitt, of counsel,) for respondent.

The complaint in this case avers that the plaintiff was employed by the defendant to find a purchaser for a lot of land she owned in the city of Brooklyn, and that he was the procuring cause of a sale under the employment. The answer avers a termination of the agency before sale, and contains a denial that the plaintiff was the procuring cause of the sale. The employment was only to produce a purchaser, and the proof shows that the plaintiff introduced one Gibson to the defendant, to whom she subsequently sold the property. The defendant gave evidence tending to show that the first effort to sell to Gibson failed, and that he subsequently reduced the value of his property, which was to be exchanged for defendant’s property, and took the deed. The plaintiff and one Grant occupy the same offices, and there is proof that Grant, subsequently to the failure to make a sale, conducted the negotiations for Gibson. All the parties were fully examined before the jury," and they found for the plaintiff. The question is one of fact. There is proof enough to sustain the finding if it be credited. The plaintiff was employed to find a purchaser. He introduced Gibson to the defendant. Gibson asked too much for his property. Grant subsequently conducted the negotiations for the plaintiff, which fully resulted in an exchange. The buyer and seller were brought to an agreement through plaintiff and Grant, acting for him, and his title to the commission was made out. Lloyd v. Matthews, 51 N. Y. 124 . The exceptions are not sufficient to reverse the judgment. The question excluded at folios 64 and 65, as to the agreement between plaintiff and Grant as to the commission, was admitted at folios 113, 114. The question put to the witness Grant at folio 120 was needless. The negotiation was renewed by Grant upon plaintiff’s promise to compensate him, and because Mr. Nemirs declined to negotiate with plaintiff. The facts were proven. The question rejected was but an inference from them. The judgment should be affirmed, with costs. All concur.

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