Frank L. Fisher Co. v. Woods

• Decision Date: 08 January 1907
• Citation: 79 N.E. 836,187 N.Y. 90
• Parties: FRANK L. FISHER CO. v. WOODS.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 90

79 N.E. 836

FRANK L. FISHER CO.

v.WOODS.

Court of Appeals of New York.

Jan. 8, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Frank L. Fisher Company against Robert L. Woods. From a judgment of the Appellate Division unanimously affirming a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

J. Harry Hull, for appellant.

John T. Sackett, for respondent.

HAIGHT, J.

This action was brought by the plaintiff, a corporation engaged in the business of real estate brokerage, to recover compensation for services which it claims it had rendered the defendant with reference to the sale or exchange of certain real property in the city of New York. The trial court has found as facts that on or about the 1st day of July, 1904, the defendant entered into an oral agreement with the plaintiff by which it was to sell or exchange for defendant certain real property specifically described, and that the plaintiff, pursuant to such agreement, procured a customer therefor, who was willing to take the property upon the terms agreed upon, and that its services were of the fair and reasonable value of $1,500, but, as conclusions of law, the court found that the plaintiff had no cause of action, for the reason that it had no written authority to sell, or offer for sale, the property, pursuant to the provisions of chapter 128, p. 312, of the Laws of 1901, known as ‘section [187 N.Y. 93]640d of the Penal Code.’ Judgment was, therefore, entered in favor of the defendant, dismissing the plaintiff's complaint, with costs.

The contention is now made that the plaintiff has no standing in this court to review the judgment, for the reason that the exceptions taken by the plaintiff are to the conclusions of law which were proposed by itself and found by the trial court in conformity with plaintiff's own requests, and that the appeal was taken pursuant to section 190 of the Code of Civil Procedure and that the Appellate Division in giving leave to appeal to this court did not certify any question to be reviewed. In answer to this contention, our examination of the record fails to show that the conclusions of law were proposed by the plaintiff, or that the trial court found in conformity with its requests. If the plaintiff did prepare the findings and conclusions of law, by the direction of the trial court after the announcement of a decision as to the disposition that should be made of the case, we apprehend the plaintiff would not be estopped from taking exceptions to the conclusions. The action was to recover compensation for services rendered and is, therefore, brought within the provisions of subdivision 2, of the second paragraph of section 191 of the Code, and therefore no questions were required to be certified. Young v. Fox, 155 N. Y. 615, 50 N. E. 279.

The only other question which we are called upon to review is as to whether the statute referred to is violative of the provisions of the Constitution of this state or of the United States. The provisions involved in the discussion are to the effect that no member of this state shall be deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers, nor be deprived of life, liberty, or property without due process of law, nor shall any state deny to any person within its jurisdiction the equal protection of its laws, or enact any law impairing the obligations of contracts. Article 1, §§ 1 and [187 N.Y. 94]6, of the state Constitution; article 1, § 10, and amendment 14 of the United States Constitution. The learned judges of the Appellate Division of the First and Second Departments have had the provisions of this statute under consideration and have reached different conclusions. Able and exhaustive opinions have been written by them referring to the authorities which tend to support their respective positions and there is but little that we can add to the discussion farther than to choose between them the conclusion which we deem to be the wisest and the best supported by the authorities. Grossman v. Caminez, 79 App. Div. 15,79 N. Y. Supp. 900;Whiteley v. Terry, 83 App. Div. 197,82 N. Y. Supp. 89;Cody v. Dempsey, 86 App. Div. 335,83 N. Y. Supp. 899.

The constitutionality of this act depends upon the question as to whether it was a valid exercise, on the part of the Legislature, of the police powers of the state. The rules which should control us in the determination of this question appear to be well established by the authorities. The power must be exercised subject to the provisions of both the federal and state Constitutions, and the laws passed in the exercise of such power must tend, in a degree that is perceptible and clear, toward the preservation of the public safety or the lives, health, and morals of our inhabitants or the welfare of the community. But the Legislature cannot arbitrarily infringe upon the liberty or property rights of any person living under the Constitution, nor prevent him from adopting and following any lawful profession, trade, or industrial pursuit not injurious to the community that he may see fit, nor prevent him from making contracts with reference thereto. To justify the state in interposing its authority in behalf of the public, it must appear that the interest of the public generally, as distinguished from those of a particular class, require such interference, and that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The Legislature...