Gerding v. Haskin

• Decision Date: 13 March 1894
• Citation: 36 N.E. 601,141 N.Y. 514
• Parties: GERDING v. HASKIN et al.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 514

36 N.E. 601

GERDING

v.HASKIN et al.

Court of Appeals of New York.

March 13, 1894.

Appeal from superior court of New York city, general term.

Action by Benjamin F. Gerding against John B. Haskin and Abraham B. Tappen to recover brokerage. From a judgment of the general term (21 N. Y. Supp. 636) affirming a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed.

Isaac H. Maynard, for appellants.

C. Bainbridge Smith, for respondent.

The other facts fully appear in the following statement by EARL, J.:

This action was brought by the plaintiff to recover his compensation as a broker under the employment of the defendants to find for them a purchaser of their real estate, situated in the city of New York. They put in issue the material allegations of the complaint. Upon the trial he gave evidence tending to show his employment, the amount of his compensation, and what he claimed to be performance of his contract. As to the performance, the only evidence for the plaintiff was that of himself and one Lewis. He testified that after his employment he went to Haskin's house, and told him that he had a buyer for the property at his price, ($110,000,) and asked him how much he required to be paid on the contract; that Haskin replied, ‘$25,000 on the delivery of the deed, $5,000 on the signing of the contract;’ that the next day he again went to Haskin's house, with Lewis, and introduced Lewis to him, and told him ‘he was the gentleman who represented the buyers; that Mr. Haskin said, ‘All right,’ and wanted to know the names of the buyers,' and he gave him the names, and he entered them in a memorandum book; that Mr. Lewis then told Haskin that he had $250 in his pocket, and took it out, which he said he would pay to him, and take a receipt, and that any time he named he would draw the contract, and pay him the balance of the $5,000, the deed to be delivered on the 1st of November; that Mr. Haskin expressed satisfaction with the persons named as buyers; that no one was present but himself and Lewis and Haskin; and that, in his interview with Haskin, he named eight persons as proposed purchasers of the real estate. It appears by his cross-examination that he was required to give a bill of particulars in this action, and that one of the persons named to Haskin as a buyer was not named in the bill of particulars, and that another one who was not named to Haskin was specified in the bill of particulars. Lewis testified that, at the interview mentioned, he told Haskin he had a ‘syndicate which were willing to pay the $110,000,’ and that he ‘had $250 in cash, and took the money out, and offered it to him to pay a deposit, and take his receipt for the same,’ which Haskin, for reasons stated, declined then to take; that Haskin asked him ‘who the syndicate was;’ that ‘I gave him some of the names of the syndicate that we had at that time; I don't think the syndicate was full when I went there;’ and that then he gave the names of the persons who had then joined the syndicate, one of whom, at least, was not among the names mentioned by the plaintiff in his evidence. He testified further: ‘When I heard that the property was for sale, we started in to form a syndicate to purchase it; and I got these gentlemen together,-part of them, not all of them,-on a Saturday evening, in our office, and submitted the offer of $110,000,-at least, submitted the price of $110,000 for the property. There was nothing paid in. Each one assented to subscribe for one share. They authorized me to go to Haskin, and offer him $110,000 for the property, and to pay $250 on the contract, or on the purchase of the property, and, if Mr. Haskin wished any more money, to call on Mr. Martin Walter, and he would supply it. I was to draw on Mr. Walter for the $5,000.’ He also testified that he was a member of the syndicate, that he furnished the $250 which was offered to Haskin, and that no one else put up any money; and the list of proposed purchasers testified to by him differed materially from the list of names specified as purchasers by the plaintiff. The defendants, testifying on their own behalf, denied the employment, the agreement for compensation, and the performance of the contract by the plaintiff. At the close of the plaintiff's evidence, the defendants moved to dismiss the complaint, specifying no grounds, and their motion was denied. At the close of all the evidence on both sides, they again moved for the dismissal of the complaint, and for the direction of a verdict in their favor, specifying no grounds for their motions, and the motions were denied. The evidence was then submitted to the jury and they found for the plaintiff, and from the judgment in his favor the defendants appealed to the general term and to this court.

EARL, J., (after stating the facts.)

Before a real-estate broker can recover his compensation, he is bound to prove that he found a purchaser, and produced him to his principal, ready and willing to purchase the real estate upon his terms. Rap. Real Estate Brokers, § 72; Coleman v. Garrigues, 18 Barb. 60;Martin v. Bliss, 57 Hun, 159, 10 N. Y. Supp. 886;Wylie v. Bank. 61 N. Y. 416. It is...