Bendell v. De Dominicis

• Decision Date: 11 July 1929
• Citation: 251 N.Y. 305,167 N.E. 452
• Parties: BENDELL v. DE DOMINICIS.
• Court: New York Court of Appeals Court of Appeals

251 N.Y. 305

167 N.E. 452

BENDELL

v.DE DOMINICIS.

Court of Appeals of New York.

July 11, 1929.

Action by Robert S. Bendell against Florinda De Dominicis. From a judgment (225 App. Div. 835, 232 N. Y. S. 695) confirming a judgment of the Trial Term entered upon a verdict of the jury in favor of plaintiff, defendant appeals by permission.

Judgment of the Appellate Division and that of the Trial Term reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, Third Department.

Philip J. Cirillo, of Troy, for appellant.

Maurice Freedman, of Albany, for respondent.

POUND, J.

On the facts as found by the jury it appears that plaintiff, prior to May 1, 1928, resided at 1060 Madison avenue, Albany, N. Y., and was a tenant of the defendant; there in the year 1926 defendant employed him to sell her property, consisting of two parcels known as Nos. 1058 and 1058-a Madison avenue and Nos. 1060, 1062, and 1064 Madison avenue; that some time thereafter plaintiff procured a prospective purchaser, Lazarus, for the second of the parcels; that Lazarus offered $77,500 therefor, which offer was not then accepted; that on November 15, 1927, a written contract was entered into between defendant and Lazarus, without the further intervention of plaintiff, for the purchase and sale of the property for the sum of $77,500; that the transaction was closed and the purchase money was paid in January, 1928.

Plaintiff was not a licensed real estate broker from September 30, 1926, to November 7, 1927, but was a duly licensed broker when he was first employed and also when the contract of sale between defendant and Lazarus was entered into on November 15, 1927. He has recovered a judgment for commissions. The question is whether he was entitled to maintain an action therefor under the provisionsof article 12-A of the Real Property Law (Laws 1922, c. 672, amended by Laws 1926, c. 831; Consol. Laws, c. 50), §§ 440, 440-a, 442-d, 442-e, which read as follows:

‘§ 440. Definitions. Whenever used in this article ‘real estate broker’ means any person, firm or corporation, who, for another and for a fee, commission or other valuable consideration, lists for sale, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of an estate or interest in real estate, or collects or offers or attempts to collect rent for the use of real estate, or negotiates, or offers or attempts tempts to negotiate, a loan secured or to be secured by a mortgage or other incumbrance upon or transfer of real estate. * * *

Ԥ 440-a. License Required for Real Estate Brokers and Salesmen. On and after the first day of October, nineteen hundred and twenty-two, no person, copartnership or corporation shall engage in or follow the business or occupation of, or hold himself or itself out or act temporarily or otherwise as a real estate broker or real estate salesman in any city of the state * * * without first procuring a license therefor as provided in this article. * * *

Ԥ 442-d. Actions for Commission; License Prequisite. No person, copartnership or corporation shall bring or maintain an action in any court of this state for the recovery of compensation for services rendered, in any place in which this article is applicable, in the buying, selling, exchanging, leasing, renting, or negotiating a loan upon any real estate without alleging and proving that such person was a duly licensed real estate broker or real estate salesman on the date when the alleged cause of action arose.

‘§ 442-e. Violations. Any person who violates any provision of this article shall be guilty of a misdemeanor. The commission of a single act prohibited by this article shall constitute a violation hereof. In case the offender shall have received any sum of money as commission, compensation or profit by or in consequence of his violation of any provision of this article, he shall also be liable to a penalty of not less than the amount of the sum of money received by him as such commission, compensation or profit and not more than four times the sum so received by him, as may be determined by the court, which penalty may be used for and recovered by any person aggrieved and for his use and benefit, in any court of competent jurisdiction. It shall be the duty of the court or judge, upon a conviction for a violation of any provision of this article, and within ten days thereafter, to make and file with the department of state a detailed report showing the date of such convictions, the name of the person convicted and the exact nature of the charge.’

The courts below have proceeded on the theory that the meeting of minds of vendor and purchaser on the terms of sale occurred on the date of the signing of the contract of purchase and sale; that the plaintiff was then a licensed real estate broker, and, as that was ‘the date when the alleged cause of action [for commissions] arose,’ he maintained the burden of proof that he was a licensed real estate broker when such cause of action arose, within the provisions of section 442-d, and is entitled to recover. Plaintiff has, however, failed to show that he was a licensed real estate broker at the time he rendered the services alleged in the complaint and proved on the trial. If he, while unlicensed, engaged in a single act prohibited by the article, he was guilty of a misdemeanor. His contention is that he is nevertheless subject only to the penalties imposed by law, and that his right to recover, his commissions is not affected by the statute. He...