Cohen v. Hershfield — 30 N.Y. St. Rep. 436

Majority

p. 436

Marks Cohen, Resp’t, v. Bertha Hershfield, App’lt.

(New York Common Pleas,

General Term,

Filed April 7, 1890.)

Headnote

Bbokebs—Commissions—Deceit op pubchaseb

False representations on the part of the purchaser of real estate by which the seller is induced to pay the broker’s commissions to one who is not the procuring cause of sale give no right of action for such commissions to the broker who procured the sale against the purchaser.

p. 437

Appeal from judgment of the second judicial district court.

Action for damages to recover real estate broker’s commissions alleged to have been lost through the alleged fraud and deceit of the defendant.

Lewis Johnston, for app’lt; Christopher Fine, for resp’t.

Plaintiff, a real estate broker, was employed as such by one Blumberg to sell the latter’s house, Ho. 306 Henry street in the city of Hew York, and acting in pursuance of such employment he procured a purchaser in the person of the defendant. Thereafter, as plaintiff claims, the defendant conspiring with her brother, one Lappart, to cheat and defraud him out of his commission from Blumberg, concealed the fact that she became such purchaser through the efforts and instrumentality ‘of the plaintiff, and falsely and fraudulently and with intent thereby to deceive him and to induce him to pay such commissions- to Lap-part. Plaintiff further alleges that relying upon such representations Blumberg was induced to pay, and did pay, the amount of such commissions to Lappart, and that thereby such commissions were lost to him, and he seeks in this action to recover the amount of his alleged damage from the defendant. In the court below plaintiff was allowed to recover.

It is difficult to conceive upon what principle of law the judgment can be sustained. Admitting every fact relied upon by the plaintiff he has utterly failed to show a cause of action, and the complaint should have been dismissed upon defendant’s motion. Blumberg chose, at his own peril, to determine Lappart’s claim to the commissions by payment thereof to him, and it has been re* peatedly held that if a debtor pay the amount of his indebtedness to one of two or more persons asserting opposing claims thereto, the person to whom payment was - made is not liable to the person subsequently proving himself entitled- to payment, for the - amount received. See Patrick v. Metcalf, 37 N. Y., 334 .

In Butterworth v. Gould, 41 N. Y., 450 , approving of and following Patrick v. Metcalf, the court of appeals hold it to be a principle well established by authority that “ when a defendant has received money due to the plaintiff, but claiming it as his own under circumstances under which he has no authority from the plaintiff, and does not act under any pretense of such authority, and the payment is made in proposed recognition of his title thereto as his own, and does not operate to discharge the payor from his liability to the -plaintiff, then and in such case there is no trust, and no. implied promise to pay the money to the plaintiff.”

Applying the principle ref erred, to to the facts claimed by the plaintiff, it is apparent that he is not entitled to recovery against Lappart, the actual recipient of the commissions in question, and there is much less ground for holding the defendant. Ho fraud or misrepresentation was practiced, upon the plaintiff. He parted with nothing on the faith of any representations of the defendant, and his right to commissions from Blumberg, at whose request he rendered the services leading to the sale, remains in

p. 438

tact, ana is in no wise or manner abridged or affected by payment of-the commissions to Lappart. How then has plaintiff been damaged? If fraud and deceit were intended it was not upon plaintiff, but upon Blumberg, who paid the commissions to Lappart. Blumberg might complain, but clearly not the plaintiff, and fraud without damage does not confer, a right of action. Taylor v. Guest, 58 N. Y., 262 , 266.

The judgment appealed from must be reversed, with costs, and a new trial ordered.

Larremore, Ch. J., concurs.