Smyth v. Sichel — 97 N.Y.S. 1008

Majority

p. 1008

SMYTH et al. v. SICHEL.

(Supreme Court, Appellate Term.

February 27, 1906.)

Headnote

Brokers—Commissions—Sale ot Realty.

Pen. Code, § 640d (Laws 1901, p. 312, c. 128), providing that In cities of the first and second class any person who shall offer for sale any real property without the written authority of the owner shall be guilty of misdemeanor, cannot be invoked as a defense where the contract has been' fully executed, and. defendant has reaped the beneiit of it, and ac-J khowledged in writing the plaintiff’s agency and performance.

Appeal from Municipal Court, Borough of Manhattan,.Twelfth' District,- _ V- ^ ........, . ; , ; ... .. _______

p. 1009

Action by Peter Smyth and another against Maurice Sichel. From a judgment for defendant, plaintiffs appeal.

Reversed.

Argued before SCOTT, P. J., and GIEGERICH and GREEN-BAUM, JJ.

J. Charles Weschler, for appellants.

Albert W. Venino, for respondent.

We consider that section 640d of the Penal Code (chapter 128, p. 312, Laws 1901) cannot be invoked as a defense to this action. The contract was fully executed, the defendant reaped the benefit of it, and acknowledged in writing the plaintiffs’ agency, which involved employment, and performance. The defendant must be held to have waived the defense afforded him by the statute. Cody v. Dempsey, 86 App. Div. 336 , 83 N. Y. Supp. 899 ; Sinnott v. German Am. Bank, 164 N. Y. 391 , 58 N. E. 286 . The defense that Sichel and Scully should have been jointly sued, if it had been available, was expressly waived upon the trial by the stipulation of defendant’s counsel that no defense was relied upon except the section of the Penal Code above quoted.

Judgment reversed, and new trial granted, with costs to appellants to abide the event.

GIEGERICH, J., concurs. GREENBAUM, J., concurs in result.