
    Samuel Friedman, Plaintiff, v. Isaac Bittker and Abraham Rosenblum, Defendants.
    (Supreme Court, New York Special Term,
    November, 1904.)
    Real estate broker — When a written authority to offer property for sale is not necessary.
    Where a real estate broker employed to negotiate a sale of certain premises makes a contract with a proposed purchaser of the premises by which the latter, in consideration of the broker furnishing information respecting the name and address of the owner of real property, and permitting the proposed purchaser to deal directly with the owner without the intervention of the broker, agrees to pay the broker a certain sum in case the negotiations should result in a purchase of the property, it is not a defense to the enforcement of the contract by the broker that he did not have at any time written authority from the owner of the property to offer it for sale; as the statute requiring such written authority was not intended to apply to such a contract.
    Demurrer to defense.
    Johnston & Johnston, for plaintiff.
    Abraham Kelson, for defendants.
   Blanchard, J.

The complaint alleges that the plaintiff, a real estate broker, was authorized by the owner of certain real estate to- offer it for sale at the price of $90,000; that the owner agreed to pay the plaintiff the usual brokerage of one per cent, if the latter secured a purchaser of the real estate at the price stated; that the defendants, to whose attention plaintiff had introduced the said real estate, agreed with the plaintiff that if he would furnish to the defendants the name and address of the owner of the real estate and permit them to conduct negotiations for the purchase of the same directly with the owner they, the defendants, would pay to the plaintiff, in the event of their purchasing said premises, the brokerage of one per cent. The complaint further alleges that the plaintiff performed his part of this agreement, the result of which was that the defendants purchased the property from the owner without his intervention, and that the defendants now decline to pay him the brokerage agreed upon. To this complaint the defendants interpose a defense to the effect that the plaintiff did not have at any time a written authority from the owner to offer said premises for sale, as required by chapter 128 of the Laws of 1901. To this defense the plaintiff demurs upon the ground that it is insufficient in law upon the face thereof. The Appellate Division in this department has sustained this statute (Whiteley v. Terry, 83 App. Div. 197), while the Appellate Division in the Second Department has declared it to be unconstitutional. Grossman v. Caminez, 79 App. Div. 15; Cody v. Dempsey, 86 id. 335. But for the purposes of this demurrer it is not necessary to discuss the effect of the statute, for in my opinion the right of the plaintiff to recover does not depend upon it. The contract upon which he relies was not made with the owner of the property, but with defendants. The terms of this contract were that in consideration of the plaintiff giving to the defendants information respecting the name and address of the owner and permitting them to deal directly with the owner, without the plaintiff’s intervention as broker, they would pay him a certain sum if their own negotiations resulted in a purchase of the real estate by them. Such a contract as that does not come within the provisions of the statute pleaded by the defendants. The demurrer is sustained, with costs, with leave to the defendants to serve an amended answer within twenty days upon payment of costs.

Demurrer sustained, with costs, with leave to serve an amended. answer within twenty days on payment of costs.  