Hodgkins v. Mead — 29 N.Y. St. Rep. 671

Majority

p. 671

Frank B. Hodgkins, Resp’t, v. Sarah F. Mead, App’lt.

(City Court of Brooklyn, General Term,

Filed February 24, 1890.)

Headnote

1. Brokers—Commissions.

Plaintiff procured a purchaser for defendant’s premises, and an executory contract was executed and delivered in escrow. Held, that in the absence of an agreement that plaintiff should not be entitled to commissions till the contract was fully performed, such executory contract entitled him to commissions.

.2. Same—Evidence.

In an action for such commissions, the conversation between plaintiff and defendant’s agent at the time of his employment is admissible to show the character, nature and extent of such employments

Appeal from judgment in favor of plaintiff, entered on verdict of a jury.

Action to recover commissions as broker on the sale of real •estate. Plaintiff produced purchasers and a contract was made, bonds and mortgages executed, which were delivered to Mr. Sergeant in escrow, to be delivered if the purchasers proceeded with the buildings on the premises within a specified time; if not, to be returned and cancelled.

Sewall Sergeant, for app’lt; Henry Pressprich, for resp’t

The largest part of appellant’s argument was •devoted to the contention that the verdict was against the weight of evidence. This is disposed of by the mere suggestion that the .appeal book contains no order refusing $0 set the verdict aside on that ground, and no notice of appeal from any such order; but, assuming that question to be before us regularly, the testimony satisfies us that the verdict should not be disturbed on that ground. The motion for non-suit was properly denied. The plaintiff was •employed to secure a purchaser for defendant’s premises. He procured Kennerly and Young, for the deed, mortgages, bonds, agreement of February 25,1888, and the alleged escrow contract, dated February 25, 1888, clearly and fully establish an executory contract between the parties for the sale of the lots for $80,000, to be secured by mortgage thereon, and with a building loan of $22,000 on mortgage thereon, title to pass ten days after the purchasers shall have diligently prosecuted the work on the houses, and not later than March 28,1888. Purchasers to be liable for damages in case of their failure to perform the contract on their part. Such ex-ecutory contract of sale between the parties entitled the broker to his commission, Barnard v. Monnot, 3 Keyes, 203; Bach v. Em

p. 672

erich, 3 J. & S., 548, unless there was an agreement between the parties that the plaintiff (broker) should not be entitled to his commissions till the executory contract of sale was fully performed. Whether there was any such agreement was submitted to the jury on conflicting evidence, and decided in favor of plaintiff. The conversation between the plaintiff and defendant’s agent was properly admitted to show the character, nature and extent of the employment. The only other point raised by appellant relates to the correction of the verdict by the trial court. This has been upheld by the court of appeals.

For the foregoing reasons the judgment must be affirmed, with, costs.

Osborne, J., concurs.