Carroll v. O'Shea — 42 N.Y. St. Rep. 671

Majority

p. 671

David H. Carroll, Resp’t, v. Ann T. O’Shea, App’lt.

(City Court of New York,

General Term,

Filed December 17, 1891.)

Headnote

Brokers—Commissions.

Plaintiff, representing the purchaser, called upon the seller’s husband, ■ who was her agent, and made several offers for the property, one of which was accepted. He showed no employment by the seller or her husband. Held, that under such circumstances he had no claim against her for commissions.

Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court

Frederick Hemming, for resp’t; Fellows, Gray & Hartman, for app’lt.

The plaintiff is a real estate broker, and sues herein for commissions for the sale of certain property of defendant. The trial j ustice directed a verdict in plaintiff’s favor for the amount claimed, $540.80.

The testimony of the plaintiff shows that he, representing the purchaser of said property as a broker, called upon defendant’s husband, who acted as her agent in this matter, and made several ■offers for the same. The last offer ($26,000) was accepted. Upon this testimony he bases his claim for a recovery. Nowhere in his testimony does it appear that he was ever employed by the defendant, or her husband, to sell the property as defendant's broker. His testimony shows that he was the purchaser's agent or broker.' In such a case no cause of action exists in favor of the broker against the seller for commissions earned. He must first be employed. Then if he complies with the terms of his employment he is entitled to receive pay for his service.

Besides, as above stated, it appears that the plaintiff represented the buyer, and therefore it is reasonable to assume that, as the buyer’s agent, he procured the property at the lowest obtainable figure; while it was his duty, if he was the seller’s agent, to obtain the highest possible price for the same. It is because of this conflict and clash of interests that the law in cases of this.

p. 672

character provides that the broker cannot represent both parties, except by their consent, and exacts from him the highest degree of faithfulness and fidelity to the interests of the party he represents. This he cannot very well do if he serves two masters.

The judgment and order are reversed, with costs to appellant to-abide event of action. New trial ordered.

Van Wyck and McCarthy, JJ., concur.