Dailey v. Young — 37 N.Y. St. Rep. 903

Majority

p. 903

John B. Dailey, Resp’t, v. Jacob Young, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

Bbokbbs—Commissions.

Plaintiff was employed by defendant to sell a house and negotiated with one D., who was not willing to pay the price. Defendant refused to take less but did not terminate the contract with plaintiff, and subsequently himself sold to D. at a less price. Thereafter he requested plaintiff to accept a certain sum for his services, which plaintiff agreed to do. Held, that the parties stood in the same position as if defendant had told plaintiff to sell to D. at the price he took himself, and that plaintiff was entitled to recover the amount named.

Appeal from judgment in favor of plaintiff, entered upon verdict in county court.

Action to recover commissions of a real estate broker for the sale of real estate in the city of Middletown.

T. N. Little, for app’lt; B. F. Low (W.F. O'Neill, of counsel), for resp’t.

The complaint avers an employment of the plaintiff by the defendant to sell a house and lot in Middletown, Orange county, which the defendant owned. That after the sale the defendant requested the plaintiff to accept $100, which was less than the value of the service, and that the plaintiff accepted this sum as the value of the work done. The answer dénies the complaint entirely.

It appeared on the trial that the contract of employment between the parties in respect to the price was that it was to be $4,500.. The defendant sold the house himself for $4,200. The plaintiff was in negotiation with one Donovan and had shown him the premises. Donovan would not pay the price and the plaintiff so informed the defendant He refused to take less, but did not terminate' the contract with the plaintiff. He was told that the proposed purchaser wanted an abatement of one or two hundred dollars. The defendant on this state of the facts agreed with the purchaser Donovan for $2,200, saying that “ as long as he was doing the business himself he would not have to pay any commission.” These facts if found by the jury put the parties in a position in respect to the subject of the contract, the same as if defendant had told plaintiff to sell to Donovan at the price he took himself. This was the view of the parties themselves, for defendant promised to pay the $100 agreed upon after he had sold to Donovan. Levy v. Googan, 9 N. Y. Suppl., 584; 30 N. Y. State Rep., 553.

The plaintiff was entitled to recover this sum and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.