Crasto v. Carlew — 42 N.Y. St. Rep. 464

Majority

p. 464

Moses P. Crasto et al., Resp’ts, v. James Carlew, App’lt.

(New York Common Pleas,

General Term,

Filed January 4, 1892.)

Headnote

Brokebs—Commissions—Chabg-e.

In an action for broker’s commissions the employment and sale of the-property was admitted, the only issue being whether plaintiffs were the procuring cause of sale. The evidence tended to show that one of them had acted for the purchaser throughout the transaction and received half commissions from him. The court charged “that an agent cannot , act for both parties in the same transaction unless that fact were known to both,” and refused to charge that the plaintiff’s “solicitation to represent the seller is not prejudicial,” but left the question to the jury. Held, no error.

Appeal from a judgment rendered in the district court of the city of New York for the ninth judicial district.

Wayland F. Benjamin, for resp’ts; Beltz & Large, for app’lt.

This action was brought to recover brokers’ commissions upon the sale of a house, and was tried before the justice and a jury. The employment of the plaintiffs and the sale in question were admitted by the answer, and the only question at issue upon the trial was whether or not the plaintiffs were the' procuring cause of sale. No exception to the admission or the exclusion of evidence was argued upon the appeal, nor was there any exception taken to the judge’s charge; and the sole question to be considered upon this appeal is whether or not the court erred in refusing to charge the following request: “ That Mr. Tracy’s solicitation to represent the seller is not prejudicial.”

The appellant contends that the justice was not warranted in charging as he did, “ that an agent cannot act for both parties in the same transaction unless that fact were known to both,” it being irrelevant to the issues to be determined by the jury, and that his-request to charge was designed to counteract the charge of the justice in that respect. But an inspection of the testimony shows that Mr. Tracy throughout the transaction had been acting for the purchaser and that he had paid him half commissions. It will therefore be. seen that the charge was entirely proper under the circumstances, and that the justice very properly refused to charge as requested, but left that question to the jury.

The judgment should therefore be affirmed, with costs.

Bisohoef, J., concurs.