Gemunder v. Hauser — 58 N.Y. St. Rep. 60

Majority

p. 60

August Gemunder et al., Resp’ts, v. Isidor Hauser, App’lt.

(New York Common Pleas, General Term,

Filed March 15,1894.)

Headnote

Bbokbb—Commission.

Where the sale is certainly the result of the broker’s efforts and not due to any other agency, he is entitled to compensation.

Appeal from a judgment of the general term of the city court affirming a judgment for plaintiff entered upon the verdict of a jury. The action was to recover $500 commissions for procuring the sale of a “ Stradivarius ” violin at the price of $5,000 upon a special agreement of employment by defendant.

Toionsend, Dyett & Mnstein (Henry Yonge, of counsel), for app’lt; Tillo, Buebsamen & Cochran, for resp’ts.

The evidence was sufficient to sustain a finding by the jury, that the plaintiff was the procuring cause of the sale of defendant’s violin, to Mr. Gordon McKay. It seems that the sale was effected through Miss Yan Stosch, an eminent performer on the violin, who called the attention of Mr. McKay to the instrument in question, and he purchased it in order that she might have a superior instrument to play upon. He was a man of wealth who could afford thus to indulge his artistic taste and generous sentiments.

The plaintiff had urged Miss Yan Stosch to use the instrument suggesting that some wealthy person might buy it for her, and had communicated that suggestion to defendant who had employed him to find a purchaser. The result turned out as plaintiff hoped, and was due to his interesting Miss Yan Stosch, who strongly-recommended the instrument to Mr. McKay, so that the sale was certainly the result of plaintiff’s effort and not to any other agency. We do not consider it of much, if any, importance that plaintiff had originally been the first to speak to Miss Yan Stosch about the violin and had called her attention to it, (long before she saw it or spoke to defendant about it); because, as she says, that went out of her mind; and if that was all that there was in the case we doubt if the plaintiffs would be entitled to recover. But when some weeks afterwards, she saw the violin at the defendant’s house, she recalled that plaintiff had spoken to her about it, and next day went to plaintiff, mentioned the subject and then came his

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suggestion which ultimately resulted in. the purchase by Mr. McKay.

As to the exceptions, they are disposed of by the appellant’s brief, and there is no error which calls for reversal.

Judgment affirmed, with costs.