Ochs v. Woods,

• Court: New York Court of Appeals
• Writing for the Court: COLLIN
• Citation: 117 N.E. 305,221 N.Y. 335
• Decision Date: 02 October 1917
• Parties: OCHS v. WOODS.

221 N.Y. 335
117 N.E. 305

OCHS
v.
WOODS.

Court of Appeals of New York.

Oct. 2, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Lee A. Ochs against Albert H. Woods. Judgment for plaintiff, and defendant appealed. From a judgment of the Appellate Division of the Supreme Court (160 App. Div. 740,146 N. Y. Supp. 4), reversing the judgment, plaintiff appeals. Reversed.

[221 N.Y. 335]Louis Frankel, of New York City, for appellant.

221 N.Y. 336]Nathan Burkan, New York City, for respondent.
COLLIN, J.

[1] The action is to recover the damages sustained by the plaintiff through the alleged deceit of [221 N.Y. 337]the defendant. The deceit, as charged, induced the plaintiff to accept another, in the place of the defendant, as owing him commissions for his services in securing a tenant of real estate. The trial resulted in a verdict in favor of the plaintiff. The Appellate Division, by its order of May 22, 1914, unanimously reversed

[117 N.E. 306

the consequent judgment and the order denying defendant's motion for a new trial, and dismissed the complaint. The order stated that the facts had been examined, and it appeared that the plaintiff failed to establish: (1) That he earned any commission from the defendant; and (2) that he relied upon the representations made by the defendant. We decide that the evidence here warranted the submission of it to the jury, and the Appellate Division erred in dismissing the complaint.

The evidence enabled the jury to find: In February, 1911, the defendant requested the plaintiff to procure a tenant, for a term of years, for the Brooklyn Court Theater, at designated terms, and agreed to pay him for his commission in procuring the tenant 62 1/2 per cent. of the excess of rent over the sum of $15,000 received per year during the period of the lease, and to execute upon plaintiff's request the agreement in writing. The plaintiff, acting upon such request, secured a person who was willing to become the tenant at the designated terms, and demanded before he revealed the identity of the person that the defendant execute the agreement in writing. The defendant then told him that the theater was owned and would have to be leased by a corporation, the majority of the stock of which defendant owned and of which he was president, and plaintiff would have to accept the written agreement of the corporation, instead of the defendant, to pay the commissions. He declined to deal with the corporation, and stated that he wanted a paper whereby he knew he would be paid. The defendant then stated, in effect, [221 N.Y. 338]to him that the corporation was solvent, had a surplus, was not in debt, was absolutely responsible, and would pay him. The plaintiff thereupon accepted the written agreement of the corporation, and disclosed to the defendant and the corporation the identity of the person willing to become the tenant, with whom the corporation entered into the lease at the designated terms, which have been fulfilled. The corporation was at the time in fact insolvent, and did not and was unable to pay the plaintiff the commissions.

[2] The essential constitutents of the action are tersely and adequately stated as representation, falsity, scienter, deception, and injury. Arthur v. Griswold, 55 N. Y. 400;Brackett v. Griswold, 112 N. Y. 454, 20 N. E. 376;Urtz v. New York Central & H. R. R. R. Co., 202 N. Y. 170, 95 N. E. 711;Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 40 N. E. 1039,28 L. R. A. 753, 47 Am. St. Rep. 489. There was obviously evidence sufficient in law to authorize the jury to find representation, falsity, and scienter. The respondent asserts and argues that there was not any evidence...