
    Jennie B. Woolley, Resp’t, v. William Buhler, Jr., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 17, 1893.)
    
    Broker—Commissions.
    In an action for commissions upon the exchange of property, the fact that the broker was the procuring cause cannot be inferred from the circumstance that the exchange was accomplished.
    Appeal from a judgment in favor of plaintiff.
    
      Bolton Hall ( George G. Holt, of counsel), for app’lt; W. T. Bird-sell, for resp’t.
   Parker, J.

The judgment appealed from was entered on the report of a referee, and awards to the plaintiff, as assignee of Milton T. Woolley, $920, for broker’s commissions. The referee found that an agreement was entered into between Woolley and the defendant, by which the latter agreed to pay the former a commission of one per cent, on the face value of certain properties, in case he should procure a sale or exchange thereof; that subsequently defendant and one Hawkins exchanged properties; and that Woolley was the procuring cause of such exchange. An attentive examination of all the evidence before the referee has led us to a different conclusion as toso much of his findings as asserts that Woolley was the procuring cause of the exchange, the reasons for which we shall briefly assign. The importance which should be attached to certain evidence, which we are soon to allude to, will be more readily appreciated if the situation of the parties at the time of making ttie contract which plaintiff asserts be presented. The defendant was an extensive dealer in real estate, and accustomed to receive calls from brokers, such as the plaintiff’s assignor, to the number of 25 or 30 a day. To these brokers he would give typewritten descriptions of such properties as he was offering for sale or exchange ; and if such a result, as to any of the properties described, should be brought about through the efforts of any one of the brokers, then that broker was paid a commission. About two months before the exchange of the properties, Woolley, for the first time, called on the defendant, gave him his card, said he had understood that defendant had advertised several properties to exchange, and asked if he was willing to pay brokerage for exchange. Defendant replied that he was, at the same time handing him, as he did the other brokers calling upon him the same day, typewritten descriptions of a number of properties, including those which defendant subsequently exchanged with Hawkins. There remained, then, for the plaintiff to prove, in order to establish his cause of action, that he was the procuring cause of the exchange. Fortunately for the defendant, this cannot be inferred from the fact that there was an exchange, for, if it could be, it would open the door for a recovery by each one of the twenty-five or thirty brokers who was that day given a description of the property, accompanied by a promise that, if either a sale or exchange should be brought about by him, a commission would be paid for his services. Upon the contested question whether Woolley was the procuring cause of the exchange, the plaintiff offered no evidence, except the testimony of Woolley. He testified that he received from the defendant a description of the properties which he had for exchange September 23, 1889. On September 25th, he offered defendant’s properties to Hawkins for exchange. Three days later, he called upon the defendant, and gave him a diagram of the Hawkins property. About a month afterwards, he took Hawkins to defendant’s office, at Hawkins’ request. Defendant not being in, they left without seeing him. October 28th he called on defendant, who informed, him that Hawkins had been in, but nothing had been done ; and then defendant gave him a description of a second mortgage for $50,000 to show Hawkins, which he did. Woolley did nothing else towards bringing about the exchange made, or any other exchange, unless his watchfulness of the announcements of sales and exchanges in a publication known as the " Real-Estate Record, ” for the purpose of ascertaining whether defendant and Hawkins had made an exchange, and his several inquiries of defendant, may be regarded as efforts in that direction.

Standing alone, this evidence might be said to warrant the inference that Woolley was the procuring cause of the exchange, but it does not stand alone. On the contrary, it is opposed, and completely overborne, by the circumstances proven, and the oral testimony adduced. One of the significant facts may be alluded to in this connection. Some time before the exchange was made, defendant made a contract with one C. F. Malcom, by which it was agreed that, if Malcom should effectuate an exchange of this property, his compensation would be $500. This contract was in writing, and after the exchange was made the defendant paid Malcotn $500, as provided by it. This fact stands undisputed,, and tends strongly to convince the mind that before Woolley had demanded his commission, or this suit had been brought, the defendant had no doubt that it was Malcom, and not Woolley, who. had brought about this exchange. A short review of the oral testimony will readily cause it to appear why it was that defendant, was so confident that Malcom had brought about the exchange, as to induce him to pay him for doing it. Several months prior to the exchange, Charles F. Malcom, a real estate broker, and who, like many others, had defendant’s list of properties, inquired of Albert Robinson, another real estate broker, whether he knew of any property which could be exchanged for that of defendant. Robinson was an acquaintance of Hawkins, and at that time had his property for sale or exchange. Thereupon, Robinson brought Hawkins to see Malcom, who proposed an exchange of defendant’s real estate; but the proposition did not prove satisfactory, as. Hawkins desired to make an exchange which would yield him some money, of which he was then in need. Malcolm went to the defendant, and told him the result of his interview with Hawkins, who suggested that he had a $50,000 mortgage, which might form a part of the exchange. This proposition was in turn communicated to Hawkins by Malcom, who thought favorably of it, in case he could induce a creditor named Blackford to take the mortgage. This he was successful in doing, and after considerable time spent in negotiations on September 10th, Malcom testifies that he took Hawkins to defendant, and introduced them. On this occasion there were present Hawkins and the defendant,. Hawkins’ broker, Albert Robinson, and defendant’s broker, Malcom. The negotiations lasted something like four hours, and finally resulted in an agreement to exchange, which was reduced to writing, and duly executed. This, in brief, is the story which is told by Robinson, Malcom, and the defendant. It is contradicted by no one, except in so far as Woolley’s statement to the-effect that he went with Hawkins to introduce him to .the defendant, when defendant was not in, and that defendant told him subsequently that he had seen Hawkins, but nothing had been arranged, may be said to contradict it; and it has support in the circumstances proven, to one of which we have alluded. Further discussion of the evidence seems unnecessary. The judgment should be reversed, and a new trial granted before another referee, to be appointed on order to be entered, with costs to the appellant to abide the event.

All concur.  