Kalley v. Baker — 29 N.Y. St. Rep. 677

Majority

p. 677

Julius N. Kalley et al., Resp’ts, v. Frederick Baker, App’lt.

(City Court of Brooklyn, General Term,

Filed February 24, 1890.)

Headnote

Brokers—Commissions.

The rule as to commissions of brokers on a sale of real estate is applicable to the case of an exchange; so far as the broker is concerned the exchange is made when the contract is signed.

Appeal from judgment in favor of plaintiffs, entered upon verdict, and from order denying motion for a new trial.

p. 678

Action to recover commissions as real estate broker upon an exchange of property.

At the close of the evidence counsel for each party moved the court to direct a verdict in favor of their respective client, which was denied.

W. J Qaynor, for resp’ts; Abbott Bros., for app’lt.

We are of opinion that on the testimony in this case there was no disputed question of fact to be submitted to the jury, and that a verdict should have been directed for the plaintiffs.

J. H. Kalley, one of the plaintiffs, and the defendant, Baker, substantially agree as to the contract between them. Mr. Baker testifies that he told Mr. Kalley, if he (Kailey) could exchange his (Baker’s) property free and clear for the Eemsen street flat,, subject to mortgages of $55,000, he would do so, and that if the exchange was made he would pay Kalley a commission, and Mr. Kalley also gives the same testimony. The defendant contends, that the words “ if the exchange is made, I will pay a commismission,” mean if the deeds are passed on an exchange a commission will be paid. Suppose a broker is employed to sell a house, and the party selling uses the words to the broker: “ If my house-'is sold I will pay you a commission;” under such words, if the broker procured a party ready to sign a contract of purchase, he would then be entitled to a commission. Duclos v. Cunningham, 102 N. Y., 678 ; 2 N. Y. State Rep., 13; Sibbald v. The Beth. Iron Co., 83 N. Y., 378 . We see no reason why the same rule does not apply to brokerage on an exchange; so far as the broker is concerned, the exchange is made when the contract is signed.

There was no allegation in the answer that there was any fraud on the part of the plaintiffs, or that Henry C. Humphrey was irresponsible, and the only question in the case was as to the performance or non-performance of the contract by the plaintiffs. Judgment and order denying new trial affirme'3 with costs.

Yan Wyck, J., concurs.