Whitehead v. Halsey — 52 N.Y. St. Rep. 263

Majority

p. 263

Thomas Whitehead, Resp't, v. Lewis B. Halsey, App'lt.

(City Court of New York, General Term,

Filed April 14, 1893.)

Headnote

Brokers—Commissions.

Defendant placed a house in the hands of plaintiff’s assignor for sale; the latter negotiated with Mr. Stokes of the Hoffman House, and a sale was finally made to one G., who leased the same to Stokes. The final negotiations were had with defendant, who told plaintiff’s assignor that he suspected the party he spoke of was negotiating for the property, and if it turned out that if they were buying for the estate of G. and it was leased to the Hoffman House, he would pay the commission. G. testified that he purchased for his wife and leased to Stokes. Held, that a verdict for plaintiff was not against the weight of evidence.

Appeal by defendant from judgment entered upon verdict returned against him by a jury, and from an order refusing new trial.

James Flynn, for resp’t; J. Cochrane, for app’lt.

The action is to recover commissions for services rendered by Mr. Peck, plaintiff’s assignor, in selling a house and lot for defendant. The defendant placed the property Ho. 11 West Twenty-fourth street, which adjoined the Hoffman House and the property of Mrs. Elbridge T. Gerry, in the hands of Mr. Peek for sale in 1889, and from time to time Peck spoke to Mr. Stokes of the Hoffman House interest and other parties about the property, and Mr. Stokes said he would lease or buy the same if lie could get it right, and later in the negotiations Stokes told Peck that he would not buy it himself, but said: “ I know a party who will buy it if I can make satisfactory arrangements with them for a lease,” and at first be did not say who this party was, but that the owners of the Hoffman House property were inducing them to buy it, and that then he could take a lease of it; and later on Stokes told Peck that the party who would buy it was Elbridge T. Gerry.

Mr. Peck made a full report to the defendant of these conversations and negotiations with Mr. Stokes. Mr. Stokes testified that Mr. Peck was the first brok.er who called his attention to the property, and that after some negotiations Peck said that the very least he could do was $50,000, and that at his' suggestion, he, Stokes, saw Mr. Gerry about purchasing the property, and that Gerry bought the same and leased to him, and that he now occupies it under that lease. Mr. Gerry testified that Mr. Stokes mentioned to him that there was a house and lot adjoining the Hoffman House on the side street for sale, and that it would be a valuable addition to the property if he (Gerry), would purchase it, and that Stokes stated the terms . on which he would like to rent it. Mr. Gerry says that he purchased the property for his wife at $50,000 and leased the same to Stokes. Mr. Peck testified: “I had a conversation with Mr. Halsey and got a telegram from him shortly before the contract of sale of the house was made; that telegram had reference to the proposed sale" to Mr. Gerry; I went and saw defendant on receipt of this telegram; defendant then said to me : 11 suspect that the party you have been talking

p. 264

about is negotiating for the house; a gentleman came in either this morning or yesterday morning and asked me if I owned the house, 11 West Twenty-fourth street and said : “I have come to talk with you about buying it; I will make you an offer for it, • an offer of $45,000 ; ” ' I am stating what Mr. Halsey told me; ‘ but I told him that would not be entertained for a moment, and he said: “ What will you take, or will you entertain an offer of $50,000 ? ” I said I would entertain that offer, and the man went out and was gone a short time and came back and offered me $50,000 for the property ;’ defendant told me this and then I asked defendant who it was and he said Mr. Craickshanlc; I then said : ‘Well, now, I see you understand as we have been talking, Mr. Halsey, we are going to reach a point; now where do I stand?’ and defendant said: ‘Yes, they were buying it; they may buy it for somebody else ; but if they are buying it for the estate of Mr. Elbridge T. Gerry and those people, and it is leased to the Hoffman House, I know it is through your negotiations, and I will pay you the amount of your commission.’ I said : ‘That is satisfactory, but you know it is to go there.’ ”

Mr. Halsey said further that Mr. Cruickshank said to him : “ I suppose the commission goes with this sale the usual way,” and Mr. Halsey said : “I told him no, not at all; that there are other parties interested in this matter if it goes a certain way.”

The verdict for plaintiff, the assignee of Peck, is not against the weight of evidence, and no error of law having been made, the. judgment and order appealed from should be affirmed, with costs. Fitzsimons, J., concurs.