Burtis v. Cassidy — 33 N.Y. St. Rep. 581

Majority

p. 581

Henry M. Burtis, Resp’t, v. John Cassidy, App’lt.

(City Court of Brooklyn,

General Term,

Filed October 27, 1890.)

Headnote

Brokers—Commissions.

In an action for commissions as broker in procuring an exchange of real estate, the defense was that defendant did not accept the offer of the person procured by plaintiff and that he was not tu be liable until $le exchange was consummated by the delivery of the deeds. The evidence on these points was conflicting. -Held, that these questions were properly submitted to the jury.

Appeal from judgment in favor of plaintiff, entered on a verdict, and from order denying motion for a new trial on the minutes.

Plaintiff was employed by defendant to exchange his farm and the personal property thereon for Brooklyn real estate, for a compensation of $500. He procured one Donahue, who offered to exchange certain houses therefor. This offer was accepted by -the defendant, and he directed the plaintiff to draw up a contract for the exchange, which he accordingly did, and. the defendant Donahue, and the plaintiff met next day at the office of Jackson & Burr to sign the contract. Mr. Jackson, who was defendant’s lawyer,

p. 582

suggested that the amount of the personal property on the farm which was mcntionéd in the contract, had better be accurately ascertained before signing the contract, and the signing of the contract was adjourned to enable defendant to go to the farm to take an account of the personal property, although Donahue was willing to sign the paper as defendant had requested plaintiff to draw it. The defendant then went to the farm and took account of the personal property and had his lawyer draw up a contract for the exchange, which he handed to the plaintiff to submit to Donahue and to procure Donahue, if possible, to agree to it. The plaintiff handed the contract, which the defendant’s lawyer drew, to Stone, Donahue’s broker, and Stone explained and read the contract as revised to Donahue, who agreed to sign it, and Donahue attended next day at Jackson'& Burr’s offide to sign the contract, and was there willing to do so, but the defendant said the whole trade was off, and refused to make the trade. The defendant, on cross-examination, testified that- at the time he gave the amended contract to plaintiff to enable him to get Donahue to agree to it, he had already made up his mind not to make the trade.

Defendant’s evidence was to the effect that he employed plaintiff upon condition that the commission was only payable in case the trade went through. Plaintiff denied that any such condition was annexed to his right to pay.

Jacob Brenner, for resp’t; Jackson & Burr for app’lt.

The plaintiff alleges that he was employed by defendant to exchange his farm and stock thereon for city property that would be acceptable to defendant; that plaintiff procured one Donahue to offer certain property for defendant’s farm and stock, and that said offer was accepted by defendant. The defense of defendant was two-fold: First, that defendant did not accept such' offer; second, that he was not to be liable for commissions until the exchange should be actually consummated by" delivery of deeds. There was a conflict of evidence on both of these questions, which were submitted to a jury. They decided both in favor of plaintiff. After careful examination of the testimony, we think these questions were properly submitted to the jury, and see no reason for disturbing the verdict.

judgment and order must be affirmed, with costs.

Clement, Oh. J., and Yam Wtoic, J., concur.