Tinkham v. Knox — 46 N.Y. St. Rep. 20

Majority

p. 20

Frank J. Tinkham, App’lt, v. John H. Knox, Jr., Ex’r of the Estate of William S. Livingston, Resp’t.

(City Court of New York, General Term,

Filed April 5, 1892.)

Headnote

Brokers—Commissions.

A broker who is not employed, but who brings together the owner and purchaser of property so that an agreement follows, is entitled to commissions if the owner had conscious knowledge that the broker acted as such before the agreement was consummated, otherwise not.

Appeal from judgment in favor of defendant, entered upon verdict of a jury.

Action to recover commissions on a sale of real estate.

W. C. Beecher, for app’lt; Olcott & Olcott, for resp’t.

Where a broker employed to sell or rent property is the means of bringing the owner and purchaser or tenant together, and an agreement follows, the broker is entitled to his brokerage, whether the owner knew, or was ignorant at the time, that the broker’s efforts were the procuring cause. Wylie v. Marine Nat. Bank, 61 N. Y., 415 , 417; Lloyd v. Matthews, 51 id., 124, 132. But that is not this case.

The plaintiff does not allege an employment, but that he acted as broker, with the owner’s “knowledge and consent,” and this was the issue tried.

The judge properly sent the question to the jury, telling them in substance, that if the defendant had “ conscious knowledge that the plaintiff had acted as broker before the agreement was consummated, he was liable, otherwise not”

On the issue raised and tried we find no error in the charge, nor in the rulings of the trial judge, and the judgment appealed from must be affirmed, with costs.

McCarthy and Fitzsimons, JJ., concur.