Abraham v. Goldberg — 56 N.Y. St. Rep. 614

Majority

p. 614

David Abraham, Resp’t, v. Louis Goldberg, App’lt.

(New York City Court, General Term,

Filed November 27, 1893.)

Headnote

Brokers—Compensation.

Where a broker, upon request from the owner, initiates the negotiation which eventuates in the sale, but subsequently remains silent upon the promise of the purchaser to pay his commissions in full, thereby inducing the owner to rely upon the purchaser’s certification that there was no ■ broker’s commission, and to fix the purchase price accordingly, it furnishes a consideration for the purchaser’s promise to pay the commissions.

Appeal by defendant from judgment entered on verdict of jury and from order denying new trial.

David Leventriit, for pl’ff-resp’t; Arnb. Stern, for deft-app’lt.

The evidence is amply sufficient to have justified the jury in finding that in June, 1892, the plaintiff, a real estate broker, was requested by one Stocom, the owner of a house in process of construction, to seek for him a purchaser of the same when fully built; that plaintiff immediately called upon defendant, with whom he had previously dealt in real estate transactions, both as his broker in selling and as the broker of the seller of property to him, and brought to his attention the fact that Stocom’s house was for sale at the asking price of $48,000, when completely finished, but possibly could be purchased for $42,500; that plaintiff took defendant with him to look at the house, and together they fully examined same; that at this stage of the transaction defendant requested plaintiff to apparently disappear from all further negotiations in the matter, as shown by plaintiff’s testimony, where he states that defendant said to him “ You know that you are my broker, and you know very well that I am not buying without you, and I am not selling without you, I think I can do better myself with Mr. Stocom, and when I will buy myself I will pay you the commission in full.

p. 615

You keep away; don’t talk with Mr. Stocom at all; ” that thereupon plaintiff ceased all effort in the matter as regards the sale by Stocom to defendant, and refrained from making any other or further endeavor to earn a commission from Stocom by seeking and securing as his broker, some person other than defendant to purchase the house, and that he remained silent as to his instigation of the purchase by defendant, and refrained from claiming any commission of the owner for the sale, which was eventually m^de by him to defendant, who “certified that there is no broker in this sale" in the contract he made with the owner to buy the house for $42,150.

Appellant’s contention is, that there is no consideration for the promise of defendant to pay plaintiff’s commission. This promise is made upon valuable considerations. The plaintiff initiated the negotiations which eventuated in the purchase by defendant of Stocom, the owner, who had in June requested plaintiff to secure a purchaser. This would entitle him to a commission from the owner, except for his engagement with defendant to remain silent about it, thus inducing Stocom to rely on défendant’s certification that there was no broker’s commission, and to fix the purchase price accordingly. He might have earned a commission from the owner by securing a purchaser other than the defendant, except for his agreement to make no such effort.

The judgment and order are affirmed with costs.'

McCarthy, J., concurs.