
    Emil R. Haase, Respondent, v. Samuel Ullmann, Doing Business under the Name and Style of Joseph Ullmann, Appellant.
    First Department?
    December 1, 1911.
    Principal and agent — broker’s action for commissions — proof not justifying recovery — erroneous charge.
    Action by a broker to recover commissions for services alleged to have been rendered' in procuring a contract for the sale of land. Evidence - examined, and held, that the plaintiff was not entitled to recover in that he was not the inducing cause of the sale.
    While a broker may recover commissions for procuring a sale although he did not actually bring the parties together and was not present when the sale was consummated, it must be clear that he was the procuring cause, not alone of directing the purchaser’s attention to the property, but of effecting the sale. He must not only find the purchaser, but the sale must proceed from his efforts acting as broker.
    In an action by a broker to recover commissions for effecting a sale, it is error to refuse to charge that negotiations with persons who had no authority to represent the purchaser, a corporation, were not equivalent to negotiations with it.
    Appeal by the defendant, Samuel Ullmann, doing business under the name and style of Joseph Ullmann, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 23d day of March, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of April, 1911, denying the defendant’s motion for a new trial made upon the ■ minutes.
    
      Benjamin N. Cardozo, for the appellant.
    
      J. Aspinwall Hodge, for the respondent.
   Scott, J.:

Appeal from a judgment for plaintiff entered upon a verdict, and an order denying motion for a new trial in an. action for broker’s commissions.

The plaintiff sues for a commission upon the sale for defendant of a parcel of property in Chicago to the Chicago University. It is conceded that plaintiff did not actually effect a sale, and that he never brought the parties together in agreement upon a price. His claim is that he was the “procuring cause ” of the sale, which was actually consummated by. another broker.

Plaintiff had had charge of the property, in the way of renting and collecting rents, since 1889. Defendant acquired the property in 1906, and at once instructed plaintiff to try to find a purchaser. He also placed the property with several other brokers for sale. His announced price was $250,000, but it was understood generally that he would take something less, although no definite lower figure was fixed until the actual sale. Plaintiff associated with himself. another broker named Farrar, who was more familiar with that class of property. They offered the property to a Mr. Eyerson, a rich investor; went through the buildings with Ryerson’s secretary, a man named Dodge, and furnished a statement of the leases, rentals, etc. Eyerson finally declined to consider the proposition.

After Eyerson had declined to buy the property plaintiff’s attention was turned to the Chicago University. One Wallace Heckman was the counsel and business manager of the university. He had in his office a clerk, or, as he is called, assist- ' ant, one Springer. Heckman had broad authority to act for the university in the matter of buying and dealing with' its property. Springer had no authority from the university. Plaintiff and Farrar had several interviews with Dodge and Springer, neither of whom had any authority to represent the university. The ultimate purpose was to get at Heckman and lay the proposition before him.

In February or March plaintiff obtained an interview with Heckman, who stated that he could not give an answer at that time, and asked for certain particulars. This is the only interview that plaintiff claims to have had with Heckman. The latter denies that he met plaintiff in March, 1907, and says that he did not meet him until after he had sent another broker to New York to negotiate a purchase. It had, however, come to Heckman’s knowledge that the Ullmann property was for sale, and Farrar’s name was mentioned as broker in con. nectionwith it. The relations between Heckman and Farrar seem to have been strained, and plaintiff .expresses the conviction that Heckman, would not treat with plaintiff and Farrar, and that they could not have sold to him. In February, 1907, Heckman mentioned to another broker that he was interested in water-front property, and the broker mentioned the Ullmann tract as one that was on the market. Heckman asked this broker (Gould) to obtain particulars of the property, which was done. In April Heckman authorized Gould to go to New York and buy the property at not to exceed $215,000, which hé did, defendant agreeing to pay a commission of $4,000. Defendant knew at the time that plaintiff had offered the property to the university and had had what the plaintiff called a “nibble,” but he does not seem to have known any of the details of plaintiff’s operations. This is absolutely all there is of plaintiff’s case. It seems to us that it is absurd to permit a recovery to stand. Plaintiff did no more towards effecting the sale than every broker does every day. He spoke to Heckman about the property and gave him some figures. Heckman had already had his attention called to the property and was considering it. He was unwilling to deal with plaintiff and Farrar, and they could not have made a sale to him. Plaintiff relies upon a line of cases, of which. Sussdorff v. Schmidt (55 N. Y. 319) is a leading one, in which a broker has been held to be entitled to a commission, if he is in fact the procuring cause of the sale, even though he did not actually bring the parties together and was not present when the sale was consummated. That a broker may under such circumstances be entitled to compensation is not to be doubted, but to justify a recovery in such a case it must be made abundantly clear that the broker was the efficient agent or procuring cause, not alone of directing the purchaser’s attention to the property, but of effecting the sale. He must not only find the purchaser, but the sale must proceed from his efforts acting as broker. In short, it must affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker. (Wylie v. Marine Nat. Bank, 61 N. Y. 415.) In the present case nothing of this sort appeared. It is not even at all certain that it was plaintiff who first brought the property to Heckman’s attention. The latter says that it was not, and it is in evidence that the property had been in the market for years, and that Farrar, plaintiff’s associate, had himself offered it to a large number of real estate investors. Furthermore, the fact, testified to by plaintiff, that Heckman was so prejudiced against Farrar, that plaintiff and Farrar could not have effected a sale to the university, is a complete answer to the present claim. (Sampson v. Ottinger, 93 App. Div. 226.) The failure by defendant to promptly notify plaintiff that he had sold the property is of no significance, since plaintiff never produced a purchaser willing to buy at defendant’s price. A very careful reading of the evidence convinces us that the plaintiff made out no case for the consideration of the jury and that the complaint should have been dismissed. Having arrived at that conclusion it is unnecessary to discuss the alleged errors on the part of the trial court to which defendant invites our attention, further than to say that in our opinion it was error to refuse to charge the requests modelled upon the opinion in Sampson v. Ottinger (supra), and that the jury should have been instructed that negotiations with Dodge and Springer, neither of whom had authority to represent or act for the university, were not equivalent to negotiations with the university. The counterclaim was, as we think, rightly dismissed.

The judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and" Miller, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  