Pearsen v. Lemken

CourtNew York City Municipal Court
Writing for the CourtARTHUR WACHTEL
Citation229 N.Y.S.2d 589,34 Misc.2d 636
Decision Date04 May 1962
PartiesLillian PEARSEN, Plaintiff, v. Samuel LEMKEN and Edna Lemken, Defendants.

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.

Page 590

[34 Misc.2d 637] 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There is no claim of fraud in this case, the first cause of action based thereon, having been withdrawn by the plaintiff.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).

Page 591

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).

[34 Misc.2d 638] 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...

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8 practice notes
  • Kalmon Dolgin Affiliates, Inc. v. Estate of Nutman
    • United States
    • New York Supreme Court — Appellate Division
    • April 4, 1991
    ...the property involved and cannot, therefore, sell it (see, Kennon v. Poerschke, 148 App.Div. 839, 840, 133 N.Y.S. 528; Pearsen v. Lemken, 34 Misc.2d 636, 637, 229 N.Y.S.2d 589; Batchis v. Dlugasch, 128 Misc. 148, 149, 218 N.Y.S. 369; Jeremias v. Mantione, 60 N.Y.S.2d 181, 182, 11 NY Jur 2d,......
  • Kaelin v. Warner
    • United States
    • United States Court of Appeals (New York)
    • January 13, 1971
    ...609--610; Arnold v. Schmeidler, 144 App.Div. 420, 129 N.Y.S. 408; Haase v. Schneider, 112 App.Div. 336, 98 N.Y.S. 587; Pearsen v. Lemken, 34 Misc.2d 636, 640, 229 N.Y.S.2d 589, 593.) The fact that, in the case before us, the brokerage agreement obligated the plaintiff to procure a purchaser......
  • U-Buy Realty, Inc. v. Aliota, U-BUY
    • United States
    • New York City Court
    • June 27, 1991
    ...dissent relied upon (Kennon v. Poerschke, 148 App.Div. 839, 133 N.Y.S. 528, Willner v. McDonnell, 185 N.Y.S. 837 and Pearsen v. Lemken, 34 Misc.2d 636, 229 N.Y.S.2d These cases do of course support the principle that a broker is entitled to collect a commission even where only one of the ow......
  • Sanders A. Kahn Associates, Inc. v. Maidman
    • United States
    • United States State Supreme Court (New York)
    • June 24, 1971
    ...609--610; Arnold v. Schmeidler, 144 App.Div. 420, 129 N.Y.S. 408; Haase v. Schneider, 112 App.Div. 336, 98 N.Y.S. 587; Pearsen v. Lemken, 34 Misc.2d 636, 640, 229 N.Y.S.2d 589, 593.) The fact that, in the case before us, the brokerage agreement obligated the plaintiff to procure a purchaser......
  • Request a trial to view additional results
8 cases
  • Kalmon Dolgin Affiliates, Inc. v. Estate of Nutman
    • United States
    • New York Supreme Court — Appellate Division
    • April 4, 1991
    ...the property involved and cannot, therefore, sell it (see, Kennon v. Poerschke, 148 App.Div. 839, 840, 133 N.Y.S. 528; Pearsen v. Lemken, 34 Misc.2d 636, 637, 229 N.Y.S.2d 589; Batchis v. Dlugasch, 128 Misc. 148, 149, 218 N.Y.S. 369; Jeremias v. Mantione, 60 N.Y.S.2d 181, 182, 11 NY Jur 2d,......
  • Kaelin v. Warner
    • United States
    • United States Court of Appeals (New York)
    • January 13, 1971
    ...609--610; Arnold v. Schmeidler, 144 App.Div. 420, 129 N.Y.S. 408; Haase v. Schneider, 112 App.Div. 336, 98 N.Y.S. 587; Pearsen v. Lemken, 34 Misc.2d 636, 640, 229 N.Y.S.2d 589, 593.) The fact that, in the case before us, the brokerage agreement obligated the plaintiff to procure a purchaser......
  • U-Buy Realty, Inc. v. Aliota, U-BUY
    • United States
    • New York City Court
    • June 27, 1991
    ...dissent relied upon (Kennon v. Poerschke, 148 App.Div. 839, 133 N.Y.S. 528, Willner v. McDonnell, 185 N.Y.S. 837 and Pearsen v. Lemken, 34 Misc.2d 636, 229 N.Y.S.2d These cases do of course support the principle that a broker is entitled to collect a commission even where only one of the ow......
  • Sanders A. Kahn Associates, Inc. v. Maidman
    • United States
    • United States State Supreme Court (New York)
    • June 24, 1971
    ...609--610; Arnold v. Schmeidler, 144 App.Div. 420, 129 N.Y.S. 408; Haase v. Schneider, 112 App.Div. 336, 98 N.Y.S. 587; Pearsen v. Lemken, 34 Misc.2d 636, 640, 229 N.Y.S.2d 589, 593.) The fact that, in the case before us, the brokerage agreement obligated the plaintiff to procure a purchaser......
  • Request a trial to view additional results

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