Carroll v. O'Shea — 46 N.Y. St. Rep. 297

Majority

p. 297

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

(City Court of New York, General Term,

Filed June 18, 1892.)

Headnote

Brokers—Commissions—Employment.

Plaintiff was the procuring cause of sale of defendant’s house and lot. It appeared that defendant’s husband was her general agent for the sale, and at the time of execution of the contract, when all the parties were present, he introduced plaintiff to defendant as her broker. Held, sufficient to warrant a finding that plaintiff was defendant’s broker and not the purchaser’s.

Appeal by defendant from judgment entered upon verdict and order denying new trial.

Waldorf H. Phillips, for resp’t; Fellows, Gray & Hartman, for app’lt.

This action is to recover commissions earned as broker for negotiating the sale of defendant’s house and lot to one Pollock. There is no dispute as to the fact that plaintiff’s negotiations brought about the sale, but defendant contends that there was no employment of the broker by her, and that plaintiff was not her broker to sell, but Pollock’s broker to purchase. The

p. 298

proof shows that defendant’s husband was her general agent to sell this particular house, for he says that he had authority from her to sell this property, and that he acted for her in the sale of the property; and the same is substantially admitted by her answer.

It seems that the defendant and her husband and Pollock and the plaintiff met in the office of defendant’s lawyer for the purpose of executing the contract of sale, and that at the interview there had the defendant’s husband introduced the plaintiff to her lawyer as his broker in this transaction, and to the defendant as her broker. The trigl judge instructed the jury to find for defendant if they should conclude that plaintiff was the broker of the purchaser, and that plaintiff must prove direct employment by the principál or authority from the principal to treat with an authorized agent The jury found for the plaintiff, and the verdict is not against the weight of evidence. The conversations had with defendant’s husband by plaintiff when he demanded payment of his commissions were properly admitted, for the same were a part of the same transaction and within the scope of the husband’s authority, and so, too, it was proper to allow the cross-examination of the husband In reference to these conversations. The judgment and order appealed from are affirmed, with costs.

McGown and Fitzsimons, JJ., concur.