Kohn v. Jacobs — 53 N.Y. St. Rep. 320

Majority

p. 320

Morris Kohn, Resp’t, v. Isaac Jacobs, App’lt.

(City Court of New York, General Term,

Filed June 19, 1893.)

Headnote

1. Brokers—Commissions.

Plaintiff was employed as broker to sell certain property and showed the same to defendant, another broker, who said he had a customer who might buy. and it was agreed that in case of sale the commissions should be divined. Defendant introduced a purchaser to the owner without plaintiff’s knowledge and a sale was made. Both parties claimed the commissions, and defendant was interpleaded in this action. Held, that defendant in" his efforts to secure a purchaser acted as plaintiff’s agent, and all his acts enured to plaintiff’s benefit and the commissions belonged to the latter.

" 2. S>ME.

While defendant had a claim against plaintiff for half the commissions, under their contract, for which he could bring action, yet he had no right to recover in this action because of the nature of the issues.

Appeal from judgment in favor of plaintiff, entered on verdict.

A. & L. Levy, for app’lt; David Leventritt, for resp’t.

The plaintiff and defendant are real estate brokers. The plaintiff, as broker, had for sale premises 14 Stanton street.

He showed said premises to defendant and requested him to purchase the same. Defendant refused, but said that he had a customer who might do so. It was then agreed that if such was done that the commissions should be divided.

Defendant did induce a customer to purchase the premises mentioned.

Such purchaser was introduced to the seller by defendant, and plaintiff even did not know of the intended purchaser until just about the time the contract of sale was signed.

He certainly did nothing to effect the sale beyond showing the premises to defendant, as before stated.

Plaintiff commenced an action against the owner of said premises for the commission due the broker who made the sale, claiming that he accomplished the sale.

Defendant did likewise make a like claim against the owner, who, desiring to avoid possibly the payment of both claims, had the present defendant interpleaded as defendant.

The jury evidently believed plaintiff’s version of the transaction in question and their finding of the facts is conclusive so far as we are concerned, the only question for us to determine is, does the evidence justify the verdict.

Plaintiff apparently was engaged by the owner of the premises mentioned, to procure a purchaser.

He could not do so, but defendant could and so promised in return for any services so rendered plaintiff agreed to pay him one half the commissions earned.

In his efforts to secure a purchaser defendant acted as and was the agent, servant or assistant of plaintiff, and all his acts were done as an agent of plaintiff and consequently enured to plaintiff’s benefit.

Therefore, when one of his, defendant’s, customers became the purchaser of said premises, the commissions earned because of such sale, although the sale was made by and due to the efforts of defendant exclusively, and was not contributed to by any act or deed of plaintiff’s, were due plaintiff and defendant had in turn a claim against plaintiff for one-half of the same, because of their contract to that effect for which he may bring action, but had no right to recover herein because of the nature of the issues raised by the pleadings.

Therefore the judgment rendered must be affirmed, with costs.

We find no error.

Van Wyok, J., concurs.