Conover v. Collins.

• Decision Date: 15 January 1948
• Docket Number: No. 12.,12.
• Parties: CONOVER v. COLLINS.
• Court: New Jersey Supreme Court

136 N.J.L. 393
56 A.2d 578

CONOVER
v.
COLLINS.

No. 12.

Supreme Court of New Jersey.

Jan. 15, 1948.

Action by A. Ruth Conover against George T. Collins to recover real estate broker's commission. From an adverse judgment, defendant appeals.

Judgment reversed.

Appeal from Court of Common Pleas, Essex County.

October term 1947, before CASE, C. J., and BURLING, J.

Howard R. Cruse, Alfred R. Becker, and Cruse, Becker & Longstreet, all of Jersey City, for plaintiff-respondent.

Edward J. Gilhooly and Gilhooly & Yauch, all of Newark, for defendant-appellant.

CASE, Chief Justice.

The appeal is from a judgment for the plaintiff entered on the striking of defendant's answer as sham.

The complaint alleged that the plaintiff was a licensed real estate broker and that in or about the month of October, 1944, plaintiff, as broker for the defendant, negotiated a lease for the premises at 371 Nye Avenue, Irvington, Essex County, to Francis J. McCleneghan and Archie L. McCleneghan; that the lease contained an option for the purchase of the premises by the lessees at the sum of $15,000; that the defendant agreed to pay the plaintiff for her services a commission of five per centum on the purchase price if and when the sale was closed; that the sale was closed in or about the month of November, 1946; and that plaintiff sues for the commissions. The defendant answered with a general denial, appended to which were two separate defenses, first, that there was an agreement under which plaintiff was to be paid a commission in full for the services rendered by her in the amount of $500. and that such amount was paid in full settlement; second, that if there was a promise to pay the commissions as alleged, it was made on a Sunday and was, therefore, illegal and void. At the argument of the motion affidavits and documentary exhibits were produced on behalf of both the plaintiff and the defendant. The court, concluding that the answer without merit and the defense without substance, struck the answer as sham and ordered summary judgment for the plaintiff in the amount of the claim.

The defendant owned the real estate in question and operated a tavern business thereon. On October 3, 1944, he signed and gave to plaintiff what appears to have been a real estate broker's printed form,

56 A.2d 579

and which is subject to the interpretation that it was an authority to sell the tavern business, and to lease or sell the premises. It contained various data, including the statement that the rental was...