Pearsen v. Lemken

• Citation: 229 N.Y.S.2d 589,34 Misc.2d 636
• Parties: Lillian PEARSEN, Plaintiff, v. Samuel LEMKEN and Edna Lemken, Defendants.
• Decision Date: 04 May 1962
• Court: New York City Municipal Court

Page 589

229 N.Y.S.2d 589

34 Misc.2d 636

Lillian PEARSEN, Plaintiff, v. Samuel LEMKEN and Edna Lemken, Defendants.

Municipal Court of City of New York, Borough of Bronx,

Second District.

May 4, 1962.

Morton Greenwald, New York City, for plaintiff.

Leeder & Taubman, Corona, by Leon Leeder, Corona, of counsel, for defendant.

ARTHUR WACHTEL, Justice.

This is an action for broker's commissions. The plaintiff, a real estate broker, testified that she received a listing for the house in question on February 7, 1961, from Mrs. Lemken, one of the defendants. Thereafter on March 12, she introduced the prospective purchaser to the defendants, and Mrs. Lemken showed various parts of the house to the prospective purchaser. The next day, March 13, when plaintiff telephoned Mrs. Lemken 'to check the personalty that went with the house', plaintiff was told that 'the property was not in their name; it was in their son's name'. Mrs. Lemken testified that on Monday, March 13, or Tuesday, March 14, in addition to advising the plaintiff that title was in her son's name, she also said to the plaintiff, 'Don't do anything for a while. We want to find a place to live. We don't want to be left out in the street', and that she further asked the plaintiff to find her a smaller house to live in and 'as soon as we find a place to live, you will be the agent to sell the house'. Mr. Lemken, called as a witness by the plaintiff, testified that on Wednesday, March 15, plaintiff called and asked the defendants to sign a binder which she had prepared; that the agreement was acceptable 'as far as I was concerned', but that he further refused to sign 'because the house is too big for us; my wife has a heart condition; I do not want her to walk the stairs. I want to get something without stairs'. In this connection it is to be noted that plaintiff, on cross-examination, testified that Mrs. Lemken told her she wanted a 'ranch-type house'.

There is no claim of fraud in this case, the first cause of action based thereon, having been withdrawn by the plaintiff. There is no claim that plaintiff's right to commissions springs from any attempt by the defendants to deprive her thereof by any fraudulent misrepresentation as to the ownership of the house (as specified in plaintiff's bill of particulars).

I agree with counsel for the plaintiff that the fact that title was in the name of the son, and not the defendants', is no bar to her claim for commissions against the defendants (See Millner v. McDonnell (App. Term, 1st Dept.) 185 N.Y.S. 837; Batchis v. Dlugasch (Sup.Ct.Kings County, 1926) 128 Misc . 148, 218 N.Y.S. 369).

The plaintiff's right to commissions then is to be determined by the rule set forth in Sibbald v. Nethlehem Iron Co., 83 N.Y. 378, at page 382:

'the fundamental and correct doctrine is, that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue'.

The authority of this case, or the correctness of the rule set forth therein, has never been questioned. This rule was re-affirmed in Haase v. Schneider (App.Div.2d Dept.) 112 App.Div. 336, 98 N.Y.S. 587, wherein the Court pointed out that mere agreement as to the price is insufficient, and specified, as one of the additional elements necessary, agreement as to the time of taking title. In that case commissions were refused because the parties had not agreed on the time when the transaction was to be closed, the seller insisting on eleven days and the purchaser on thirty. This rule has been amplified by the Appellate Division of this Department in Arnold v. Schmeidler, Dowling, J., 144 App.Div. 420 at page 427, 129 N.Y.S. 408, at page 413, wherein the Court classified real estate brokers' contracts as follows:

'(1) Where the owner has given the broker the full and complete terms upon which he is willing to sell his property, and not merely the asking price thereof;

'(2) Where the owner has his property for sale, and may or may not have set an asking price thereon, but does not fix the terms of the transaction leaving them to be determined thereafter.

'In the first case the broker's duty is fulfilled and his commissions are earned when he produces a customer ready, willing and able to comply with all the terms fixed by the owner. Should the latter then desire to add to the terms already imposed, the additional conditions must be germane to the original ones, if they are to furnish a sufficient reason for the refusal to pay the broker in case of the customer's refusal to agree to any modification of the original terms. In the second case the broker's commissions are not earned until the customer produced by him reaches an agreement with the owner upon the price and terms upon which a sale can be made.'

The rule of law set forth in Haase v. Schneider, supra, and Arnold v. Schmeidler, supra, was followed in Backer v. Ratkowsky (1st Dept.) 137 App.Div. 559, 122 N.Y.S. 225; Peace v. Ross (2d Dept.) 123 App.Div. 611, 108 N.Y.S. 48; Strout Farm Agency Inc. v. De Forest (3d Dept.) 192 App.Div. 790, 183 N.Y.S . 119, and was relied upon to disallow commissions to the broker where there was a failure of proof, among other things, of any agreement as to the time of execution and delivery of the deed in Gallagher v. Dullea (3d Dept.) 199 App.Div. 119, 191 N.Y.S. 439. This rule was again reaffirmed by the Appellate Division, First Department, in Thompson & Co., Inc. v. New Madison Square Garden Corporation (1929) 225 App.Div. 521, 522, 233 N.Y.S. 608, 610, wherein the Court restated the rule as follows: '[a] broker is not entitled to his commission unless the minds of the parties have met not merely on the price, but on all the terms and incidents of the transaction' (see also for a discussion of the rule Harper v. Shmulevitz, 12 Misc.2d 568, 176 N.Y.S.2d 62, and Restatement of the Law of Agency § 445, p. 1040).

In the case at bar the proof is vague as to whether any details as to assumption of the existing mortgage, the precise amount of the balance due thereon, and the amortization of the mortgage were worked out between the parties, but there is even a more serious defect in plaintiff's proof. There is no sufficient proof that there was ever a meeting of the minds of the parties with respect to...