Gold v. Serrell — 51 N.Y. St. Rep. 141

Majority

p. 141

Lewis Gold, Resp’t, v. Mary E. Serrell, App’lt.

(City Court of New York, General Term,

Filed February 8, 1893.)

Headnote

1. Brokers — Commissions—Agency.

Defendant’s brother was her general agent and had authority to sell certain premises owned by her for $19,500, provided he received compensation from the buyer for his services, and gave the same to plaintiff, as broker, for sale. Plaintiff found a purchaser who was willing to pay $19,900, and presented the offer to defendant’s brother, who signed the contract, and finally a deed was given by defendant, to said purchaser. Held, that the brother had authority to accept such offer, and that plaintiff was entitled to his commissions.

2. Reference — Report—Direction of judgment.

Where the terms of the judgment to which the successful party is entitled is evident from the referee’s report, his report is sufficient under § 1082 of the Code, although it does not expressly direct such judgment.

p. 142

Appeal from judgment in favor of plaintiff.

George W. Dease, for resp’t; Isaac N. Miller, for app’lt.

The defendant in July, 1890, owned 111 Hester street, this city. Her brother, John Gf. Lyons, was her general agent, and whatever he agreed to do concerning said property bound her and she was willing to abide thereby.

On July 31. .1891, she wrote him authorizing him to sell said premises for $19,500, provided he received compensation from the buyer for his services.

The plaintiff, a real estate broker, about the time above mentioned, had several interviews with defendant’s said brother concerning the sale of said house, which was offered for sale for $20,000 to him as a broker.

He, plaintiff, found a buyer ready, able and willing to purchase said premises for $19,900 cash, which offer was finally accepted by defendant’s said brother, who signed the contract of sale for his sister, and finally the deed to said premises was executed and delivered by defendant, through her brother,, to the persons procured by plaintiff as purchasers.

The defendant refused to pay the usual commission of one per cent, hence this suit for $199. Judgment was rendered by the referee in plaintiff’s favor.

The defendant’s brother acted, throughout all his dealings with plaintiff, as her agent, and as he was her general agent, and as all things which he done concerning said premises was satisfactory to and approved by her, therefore, his acceptance of the offer of $19,900 for the sale of said premises was valid, which offer and final sale was procured and induced by and through the agency of plaintiff.

The plaintiff earned his commission and was entitled thereto. Therefore, the judgment in his favor was rightful, and must be affirmed.

The appellant’s objection that the referee’s report fails to direct judgment, as required by § 1022 of the Code of Civil Procedure, is without merit

From the referee’s report it is- very evident what are the terms of the judgment to which the plaintiff herein is entitled, that being so, the referee has complied with § 1022, and his report is sufficient. Hinds v. Kellogg, 37 St. Rep., 356 .

Judgment affirmed, with costs.

McGown and Van Wyck, JJ., concur.