Brundage v. McCormick — 52 N.Y. St. Rep. 733

Majority

p. 733

Henry E. Brundage, Resp't, v. Ruth M. McCormick, App'lt.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893).

Headnote

Brokers—Commissions.

Plaintiff was employed by defendant to find a purchaser for her property, or one who would exchange, the terms to be settled by the parties themselves. He introduced one G. to her, but G. asked too much for his property, and the negotiation then fell through, but was afterward renewed through one Grant, who had an office with plaintiff, and who acted for G., and the exchange was effected. Held, that plaintiff’s employment was only to procure a purchaser ; that his duty was performed and he was entitled to his commissions.

Appeal from judgment of the Kings county court, affirming judgment of justice’s court in favor of plaintiff.

Action for commissions under an employment to procure a purchaser for defendant’s property, the terms of sale to be agreed on by the parties themselves.

Daniel Nemirs, for app'lt; J. R. McDivitt and Francis S. McDivitt, for resp't.

The complaint in this case avers that the plaintiff was employed by the defendant to find a purchaser for a lot of land she owned in the city of Brooklyn, and that he was the procuring cause of a sale under the employment. The answer avers a termination of the agency before sale and contains a denial that the plaintiff was the procuring cause of the sale. The employment was only to produce a purchaser, and the proof shows that the plaintiff introduced one Gibson to the defendant, to whom she subsequently sold the property. The defendant gave ■evidence tending to show that the first effort to sell to Gibson failed, and that he subsequently reduced the value of his property which was to be exchanged for defendant’s property and took the deed. The plaintiff and one Grant occupy the same offices, and there is proof that Grant, subsequently to the failure to make a ■sale, conducted the negotiations for Gibson. All the parties were fully examined before the jury and they found for the plaintiff. The question is one of fact. There is proof enough to sustain the finding if it be credited. The plaintiff was employed to find a purchaser. He introduced Gibson to the defendant. Gibson asked too much for his property. Grant subsequently conducted the negotiations for the plaintiff, which finally resulted in an exchange. The buyer and seller were brought to an agreement through plaintiff and Grant acting for him, and his title to the commission was made out. Lloyd v. Matthews, 51 N. Y., 124 .

The exceptions are not sufficient to reverse the judgment.

The question excluded at folios 64 and 65, as to the agreement between plaintiff and Grant as to the commission, was admitted at folios 113, 114.

The question put to the witness Grant, at folio 120, was needless. The negotiations was renewed by Grant upon plaintiff’s promise to compensate him, and because Mr. Nemirs declined to negotiate with plaintiff. The facts were proven.

p. 734

The question rejected was but an inference from them.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ,, concur.