
    George Bereswill, Respondent, v. Philip A. Yablon et al., Appellants, et al., Defendant.
    Argued February 26, 1959;
    decided July 8, 1959.
    
      
      Samuel Masía and Harry Zimmerman for appellants.
    I. The court below, having unanimously reversed the judgment in favor of plaintiff against defendant Samuel Fisher and having dismissed the complaint against him, erred as a matter of law in failing to reverse the judgment against Yablon and Esbar Realty Corporation for the reason that defendant Esbar Realty Corporation and Yablon, its officer and sole stockholder, were legally incapable of conspiring with each other against plaintiff. (Burns v. Hayes, 193 Misc. 491; People v. Sowma, 252 App. Div. 413; Keppleman v. Upston, 84 F. Supp. 478; Burgess Bros. Co. v. Stewart, 112 Misc. 347, 194 App. Div. 913; Reitmeister v. Reitmeister, 162 F. 2d 691; Cape Cod Food Prods. v. National Cranberry Assn., 119 F. Supp. 900; United States v. American Precision Prods. Corp., 115 F. Supp. 823; Schreiber v. Jacobs. 128 F. Supp. 44; Pinkerton v. United States, 151 F. 2d 499, 328 U. S. 640; Nelson Radio & Supply Co. v. Motorola, 200 F. 2d 911, 345 U. S. 925; Packaged Programs v. Westinghouse Broadcasting Co., 156 F. Supp. 76; Greyhound Corp. v. Commercial Cas. Ins. Co., 259 App. Div. 317; Moskowitz v. Feuer, 265 App. Div. 884, 291 N. Y. 568; Nathanson v. Brown & Williamson Tobacco Co., 189 Misc. 1024; Potter v. Minskoff, 2 A D 2d 513.) II. The decision of the trial court was not supported by credible evidence. Plaintiff was not the broker in the transaction. III. The seller never agreed to pay commissions. (Meltzer v. Flying Fame, 224 App. Div. 41; Haynes v. Fraser, 76 App. Div. 627.) IV. Yablon did not agree to purchase the property through plaintiff for $94,750 or at any other price and never asked for the return of part of the commissions. V. Yablon was legally entitled to retain Fisher as broker. (Harris v. Morton & Co., 101 Misc. 398; O’Hara v. Murray, 144 App. Div. 113; Wylie v. Marine Nat. Bank, 61 N. Y. 415; Teves v. Thieringer, 281 App. Div. 752.) VI. There is no evidence of a conspiracy. VII. Plaintiff failed to prove, as a condition precedent to an action for conspiracy against defendants, that as a result of the acts of defendants he was deprived of a cause of action against the seller based upon contract. Plaintiff did not have a claim for commissions based upon contract against the seller because he failed to prove that he was engaged as a real estate broker by the seller under an agreement to pay him any commission, that he brought the buyer and seller together on all of the essential terms satisfactory to both and was the procuring cause of the sale. (Ditmars v. Renz, 269 N. Y. 191; Benedict v. Pell, 70 App. Div. 40; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Saum v. Capital Realty Development Corp., 268 N. Y. 335; Haase v. Schneider, 112 App. Div. 336; Matter of Altz, 274 App. Div. 894; Thompson & Co. v. New Madison Sq. Garden Corp., 225 App. Div. 521; House v. Hornburg, 267 App. Div. 557, 294 N. Y. 750; Meyer & Steffens v. Claflin Realty Corp., 255 App. Div. 565; Maxwell v. Hamilton Apts., 215 App. Div. 348.) VIII. One cannot conspire to breach his own contract obligations. (Labow v. Para-Ti Corp., 272 App. Div. 890; Miller v. Vanderlip, 285 N. Y. 116; Schulman v. Royal Ind. Bank, 280 App. Div. 401.) IX. No claim for legal damages against defendants is possible where plaintiff violated his fiduciary relationship to defendant Yablon and represented conflicting interests. (Wechsler v. Bowman, 285 N. Y. 284; Lamdin v. Broadway Surface Adv. Corp., 272 N. Y. 133; Elco Shoe Mfrs. v. Sisk, 260 N. Y. 100.)
    
      Martin Shulman and Arthur N. Seiff for respondent.
    I. There is no merit to appellants’ contention that the judgment should be reversed because the Appellate Division dismissed as to Fisher, the broker appellants used to deprive plaintiff of his commission. (Green v. Davies, 182 N. Y. 499; Cuker v. Crow Constr. Co., 6 A D 2d 415; Glaser v. Kaplan, 5 A D 2d 829; Leonard v. Gottlieb, 278 App. Div. 786, 303 N. Y. 1014; Werbelovsky v. Rosen, 260 App. Div. 222; Erbe v. Lincoln Rochester Trust Co., 1 Misc 2d 413; Ippisch v. Moricz-Smith, 1 Misc 2d 120; Kunz v. Silver, 198 Misc. 1032.) II. Appellants’ conduct renders them liable to plaintiff. (Keviczky v. Lorber, 290 N. Y. 297; Hornstein v. Podwitz, 254 N. Y. 443; Spitzer v. Sachar, 4 A D 2d 53; Potter v. Minskoff, 2 A D 2d 513; Muldoon v. Silvestre, 283 App. Div. 886; Cohen v. City Bank Farmers Trust Co., 276 App. Div. 195; Avallone v. Bernardi, 276 App. Div. 1094; Williams & Co. v. Tuttle & Co., 6 A D 2d 302.) III. Plaintiff faithfully performed his duties as a broker.
   Dye, J.

The plaintiff, a licensed real estate broker, brought this action in the City Court of Mount Vernon, Westchester County, N. Y., to recover a broker’s commission of which he, allegedly, had been deprived by reason of a conspiracy among the named defendants — Esbar Realty Corp. (hereinafter Esbar), Philip Yablon, its principal officer and sole stockholder, and Samuel Fisher, the broker who actually consummated the sale to Esbar.

Upon appeal from the judgment rendered in favor of the plaintiff against all the defendants, the Appellate Division modified by reversing so much thereof as was against the defendant Fisher, severed the action and dismissed the complaint as to him on the ground that the proof failed to establish that Fisher knew of plaintiff’s rights or conspired to violate them. The judgment, insofar as it was against the defendants Esbar and Yablon, was modified.

On this appeal, we treat the action as did both the trial court and the court below as being founded in conspiracy, although the respondent now urges that the gravamen of the complaint is that appellants, by théir acts, deprived the plaintiff of a real estate commission because the conspiracy mentioned in the complaint has reference merely to tie the acts of the defendants together.

The controversy had its genesis in the following circumstances : In July of 1953, the Glennon Realty Corp. (hereinafter Glennon) was the owner of premises located at the northeast corner of Prospect and Crary Avenues, Mount Vernon, N. Y., in which Yablon was a tenant. The latter, learning; "hat the premises had been or were about to be listed for sale, contacted a real estate • broker named Thill and asked him to look into the matter without revealing that he was interested. Thill communicated with Glennon and was thereafter employed under a nonexclusive listing to provide a purchaser at the usual rate of commission. Tablón considered the listing price too high. During these times the plaintiff, a brother-in-law of Thill, was attached to his office as a salesman. Later and on Decembér 3, 1953 the plaintiff received his license as a real estate broker and in the same month succeeded to Thill’s real estate business. Thereafter plaintiff made interim attempts to work out a deal between Glennon and Tablón. Finally in April, 1955 Glennon reduced the price to $90,000 net. Plaintiff, however, did not quote that price to Tablón but, instead, quoted a price of $94,750 which he said included his commission. Tablón, allegedly, was willing to pay the quoted price provided plaintiff refunded to him $2,750 from the amount he was to receive as commission (all of which Tablón categorically denied) which proposition plaintiff refused to accept. Negotiations between them broke off. At about the same time Tablón purchased the premises in the name of his wholly owned corporation Esbar (which had been incorporated for that purpose) for the sum of $92,000 through Fisher acting as broker, to whom the seller paid a commission of $500. There was no showing that Glennon knew that Fisher was acting for the same principal as the plaintiff, or that Fisher knew about the plaintiff’s prior efforts in Tablon’s behalf. The dismissal of the conspiracy charge against Fisher—which on the proof in this record was eminently proper—left only the vendee corporation Esbar and its sole stockholder Tablón as parties to the conspiracy. In such a situation a dismissal should also have included the latter since it is well established that a conspiracy depends upon a combination of two or more persons intentionally participating in the furtherance of a preconceived scheme or design (Pinkerton v. United States, 151 F. 2d 499, affd. 328 U. S. 640). While it is entirely possible for an individual and a corporation to conspire, it is basic that the persons and entities must be separate (Nelson Radio & Supply Co. v. Motorola, 200 F. 911, cert, denied 345 U. S. 925).

In the instant case, it is conceded that Esbar was formed for the sole purpose of taking title to the property from Glennon. To say such a relationship affords a basis for a conspiracy is much the same as saying an individual or a corporation can conspire with himself or itself. This cannot be done and a complaint so drawn is legally insufficient (Moskowits v. Feuer, 265 App. Div. 884, affd. 291 N. Y. 568; Greyhound Corp. v. Commercial Cas. Co., 259 App. Div. 317; Potter v. Minskoff, 2 A D 2d 513). Furthermore, it is a long-established doctrine that one does not have a cause of action against another contracting party for conspiracy to breach the agreement between them (Miller v. Vanderlip, 285 N. Y. 116).

On the other hand, if we accept the plaintiff’s revised theory that his deprivation of commission was not the result of conspiracy but rather because of the acts of the defendants Esbar and Yablon, he, nonetheless, may not recover. Nowhere has he shown that he succeeded in bringing the parties together on a mutually acceptable price, terms and conditions of sale. Until he did so, no commissions had been earned (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Saum v. Capital Realty Development Corp., 268 N. Y. 335). The proof is that he never divulged to the buyer the net price and terms on which the seller was willing to sell, but took it upon himself to quote a higher and different price which included an arbitrary sum for alleged commissions. In so manipulating the price he made it impossible to bring the minds of the parties together on a common ground and thus, by his own conduct, prevented a sale of the property. In seeking to take advantage of Yablon’s desire and need for the property and the seller’s willingness to sell at a greatly reduced price he violated a fundamental of fiduciary relationship both as to the seller and buyer whose name he never revealed (Wechsler v. Bowman, 285 N. Y. 284; Lamdin v. Broadway Surface Adv. Corp., 272 N. Y. 133; Elco Shoe Mfrs. v. Sisk, 260 N. Y. 100).

The judgment should be reversed and the amended complaint dismissed, with costs in all courts.

Chief Judge Conway and Judges Desmond, Fttld, Fboessel and Van Voorhis concur with Judge Dye ; Judge Burke dissents and votes to affirm.

Judgment reversed, etc.  