Gale v. Roll — 58 N.Y. St. Rep. 161

Majority

p. 161

Thomas F. Gale, Resp’t, v. George Roll, App’lt.

(Supreme Court, General Term, First Department,

Filed January 12, 1894.)

Headnote

Brokers—Commissions.

In an action to recover commissions, the burden is upon the broker to establish, by a preponderance of evidence, that he was employed to make the sale, and that he was the procuring cause of the sale.

p. 162

Appeal from, a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

August Kohn, for app’lt; J. H. K. Blauvelt, for resp’t.

This action was brought to recover commissions alleged to have been earned in effecting a sale of Ho. 40 West End avenue in August, 1891. In and prior to August, 1891, John Ruck was the owner of a block of 64 houses, bounded by Tenth avenue, Eleventh avenue, Sixty-Sixth street, and Sixty-Seventh street. He had an office in Sixty-Sixth street, near Tenth avenue, at which he rented his property, collected rents, and made sales, when advantageous terms were offered. The plaintiff had been in the employ of Mr. Ruck for a year or more prior to August, 1891, and was engaged in collecting rents, letting rooms and apartments, and showing the houses to intending purchasers. At some time prior to August 1, 1891, (the date not appealing.) Mr. Ruck conveyed Ho. 40 West End avenue, and other houses in the block, to George Roll, as security for a loan. Roll never took possession of the property, or assumed its management ; but it was managed by Mr. Ruck, as before the conveyance, who advertised it for sale, in his own name, in the Herald, Tribpne, Sun, and other newspapers. On the 15th of August, Ruck signed for defendant a contract to sell the house to Samuel H. Denton for $35,000. A day or two afterwards, Roll executed the contract, and, September 1, 1891, the house was conveyed by Roll to Denton, pursuant to the contract. The foregoing facts are conceded. The plaintiff alleged in his complaint, and testified, that the defendant emplojmd him to sell this house, and agreed to pay him a commission of one per cent, if a sale were effected. The defendant denied this, and testified that he never employed the plaintiff to effect a sale of the property, but told him that Mr. Ruck controlled the property, and that, although they wished to sell it, he had no right to pay a commission, because the house belonged to Mr. Ruck. The plaintiff testified that early in August, 1891, he met vMr. Denton in the street, (never having spoken with him before,) asked him if he wished to buy a house, and after some conversation they examined Ho. 40 West End avenue; that, a few days afterwards, Denton came to John Ruck’s office, in which plaintiff was employed, for the purpose of purchasing the property, and that he referred Mr. Denton to Mr. John M. Ruck, the attorney for the defendant; and that a contract was entered into. Mr. Denton testified that lie had no such interview with the plaintiff; that he learned that the house was for sale through an advertisement in the Herald ; that be went to Roll’s office, where he saw Gale, and was by him shown the property ; that when he next went to the office the plaintiff introduced him to John M. Ruck, who went with him to see the defendant; and thatt he plaintiff had no other connection with the sale of the propery.

The undisputed fact in this case are that, at the time of the sale, Ruck was the beneficial owner of the property which was being

p. 163

advertised for sale in his name, and that it was actually sold from his office, in which the plaintiff was then employed; and these facts render the testimony of the plaintiff, that the defendant employed him to sell this property on commission, highly improbable. In addition to this, Denton, the purchaser, testified that his attention was called to the property by the advertisement in the Herald; that he went to Ruck’s office, and there saw the plaintiff for the first time and went with him from the office to examine the property and a few days afterwards returned to the office, and contracted tor the property with John M. Ruck, the attorney for Roll and the son of John Ruck. The burden was on the plaintiff to establish by a preponderance of evidence (1) that he was employed by the defendant to sell the house; and (2) that he was the procuring cause of the sale. We think that be failed to establish either proposition by a fair preponderance of evidence, and that the judgment and order should be reversed, and a new trial granted, with costs to the appellant, to abide the event.