
    Samuel A. Jenkins, Respondent, v. Robert J. Mahoney, Appellant, Impleaded with H. H. Fuller Realty Company, Defendant.
    First Department,
    February 3, 1911.
    • Principal and agent—broker’s action for commissions—partnership between brokers — when payment to partner payment to copartner — facts not justifying recovery.
    Where a corporation as a partner, or joint venturer, with the plaintiff, a real estate broker, agreed to procure a purchaser of lands for a specified sum and was paid that sum by the principal, the plaintiff cannot recover the reasonable or customary commissions from the principal for payment to the corporatior was payment to him and his remedy, if any, is against the corporation. Evidence in such action examined, and held, that the plaintiff failed to establisn his employment, or that he procured a customer ready, willing and able to purchase the property upon the terms proposed.
    Appeal by the defendant, Robert J. Mahoney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county .of New York on the 23d day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27tli day of May, 1910, denying the said defendant’s motion for á new trial made upon the minutes.
    
      
      Paul Armitage of counsel [Douglas & Armitage, attorneys], for the appellant.
    
      Jacob Friedman, for the respondent.
   Clarke, J.:

The complaint alleges that heretofore at the city of New York, between and including the months of December, 1907, and June, 1908, the plaintiff and the- defendant H. H. Fuller Realty Company, at the special instance and request- of the defendant Mahoney, duly rendered to the said Mahoney certain work, labor and services as real estate brokers in procuring for the defendant Mahoney a purchaser, to wit, the Burns Coffee Roaster Company, for the property at- the southwest corner of Forty-third street and Eleventh avenue, New York city; that through the said work, labor and services of the said plaintiff and the said defendant Fuller Realty Company, said Mahoney sold said property in the month of June, 1908,"to the said Burns Coffee Roaster Company for the sum of $>135,000; that the fair, reasonable and usual value of the said work, labor and services was one per cent thereof, amounting to $1,350, for which he demanded judgment against Mahoney ; that the Fuller Realty Company has been joined as a defendant because it has refused to join with plaintiff in tins- action.

The answer denies the allegations of the complaint, and for a separate defense alleges that prior to the commencement of this action defendant had fully paid, satisfied and discharged the alleged cause of action and all and every claim in respect to the matters mentioned in the complaint by paying to the defendant H. H. Fuller Realty Company all the money due from this defendant, or which he was liable to pay with respect to any of the above-mentioned matters.

The case was sent to the jury under a charge that “ If you find from all the evidence that the plaintiff did bring the defendant Mahoney and the Burns Coffee Roaster Company together, and that his efforts led to the final purchase of the property .by the Burns Coffee Company, then your verdict may be for the plaintiff for. $1,527.55, including the claimed interest.” The jury returned a verdict for $350, with interest from the date of the transaction, and from the judgment entered thereon and from the order denying the motion for a new trial defendant Mahoney appeals.

The cause of action is, therefore, based upon the proposition that the plaintiff and the H. H. Fuller Realty Company were jointly employed by the defendant to procure a purchaser for the property at the southwest corner of Forty-third street and Eleventh avenue; that plaintiff and said company procured the purchaser to whom the property was sold, and hence that the commissions of one per cent on the purchase price thereof had been earned.

The first objection to this judgment, as it seems to me, is that if it could be held to have been established by the evidence that the plaintiff and the Fuller Company had been jointly employed, and had brought about the sale, there is no evidence that any agreement had been entered into to pay a commission of one per cent of the purchase price, and that the plaintiff cannot stand upon the allegation that, in the absence of specific agreement, that was the usual and customary commission, because it affirmatively and without contradiction appears that the Fuller Company made with the defendant Ma-boney a specific contract for $700, which has been paid. So that if the brokers are to be considered partners, or quasi partners, or joint adventurers, in this transaction, payment of the whole amount due to one of them as agreed would seem to preclude recovery by the plaintiff against Mahoney, and leave at best a cause of action between the joint adventurers; for if the work of the Fuller Company redounded to the benefit of the plaintiff, then a payment by Mahoney to the Fuller Company must, so far as the plaintiff is concerned, be considered as a payment for his benefit.. In no view of the issues or of the evidence can we find a logical basis for the verdict of the jury of $350.

■In the second place, I do not think any cause of action was made out. Plaintiff was a real estate broker, and defendant Mahoney .was a builder. ; In March or April, 1907, the property in question at the southwest corner of Forty-third street and Eleventh avenue was owned by one Rudolph. It was for sale, and was on the books of several real estate brokers, among others, the William Ritchburg Company, which had its signs upon the property. At this time one Gibson was in the employ of Ritchburg. That this property was for sale was also known at that time to the H. H. Fuller Realty Oompany, and also" to another broker by the name of Easton, who-informed the plaintiff of that-fact," and he testified that-if the property had been sold through his efforts, he had an arrangement by which he would divide the commissions received from the owner Rudolph with Easton, and that he himself had never seen Rudolph nor had any personal relations with .him. ■

Plaintiff testified that he offered Mahoney this property, and told him that he could purchase it for- $50,000* and that plaintiff had got the property from another broker; that Mahoney said to him : “ ‘ I don’t want to buy those lots and carry them, because that will eat up the profit:’ ' He said: c You get a client or a tenant who will .lease a six story building erected on theise lots, or a client who will purchase a six story building erected on the lots,’ and he said, M will buy them and go ahead with operations.”’ - In "another version of this conversation plaintiff testified that Mahoney said: “ ‘ If you can’t get the tenant or a client to buy, yourself, go out to some of. the other brokers, and see if they have anybody, and bring them here,’ and he said, ‘ You can divide the commission with me.’ ” It must be borne in mind that at this time Mahoney did not own the property, and that the plaintiff, upon his own testimony, was acting for the owner Rudolph through his relations with Easton to accomplish a sale for Rudolph.

' In the summer of 1907 plaintiff saw Mr. Fuller of the H. H. Fuller Realty Company, and, without disclosing Mahoney’s name, told him that he had a builder who would buy this property, which Fuller knew was for-sale, and erect a building thereon if a person could be procured who would lease or buy the property after the-buildings had been erected. It should be noted here that Mahoney had never given any terms' of any kind to -the plaintiff upon which he would buy in the first .instance or sell in the second, or the ' character or plan .of- the buildings to be erected. Thereafter three attempts were made, first, with the Manhattan Chocolate Company, negotiations were- had by Mahoney with that company through the plaintiff, the Fuller Company having nothing to do with it. - This was in September, 1907, and, as the plaintiff testified, fell through on account of the. panic of that year. Second, with a furniture dealer named Engleman, in June or July, 1907. This transaction was not finished. Indeed, it did not get far enough advanced to have it taken up with Mahoney. Third, the erection of a factory for a silk house at Paterson, N. J. This, of course, had nothing to do with the property in suit, and Mahoney never heard of it and nothing came of this-. These were all of the definite efforts, made by the. plaintiff by himself or with the Fuller Realty Company, and they had all ended before October, 1907, and Mahoney’s name had not been disclosed to Fuller.

In November or December, 1907, the plaintiff introduced Gibson to Mahoney, and. told Mahoney that Gibson had a client, the H. II. Miner Lithographing Company, who would consider leasing a building on that corner. Gibson was then in the employ of Ritchburg. The plaintiff testifies: Nothing came of that transaction. * * * After that I did not have any further conversation with Mr. Mahoney in regard to Gibson.”

In April, 1908, Gibson went into the employ of the H. H. Fuller Realty Company, and some weeks thereafter Gibson introduced Mahoney to Fuller and they had a talk about this Eleventh avenue property. Fuller testified: Mahoney “ said that he would be interested in erecting, a building if we had a client that was responsible and would pay a sufficient price. I said we had such an application ; we would find out the details of the- building that the man / wanted, submit them to Mr. Mahoney and let him give us his figure.” The clients were Jabez Burn's & Sons. Thereafter negotiations were carried on through, the Fuller Company between Mahoney and Jabez Burns for'a long time, and finally resulted in the consummation of an agreement .under which Mahoney agreed to erect upon the property such building as Burris wanted, after he had purchased it from Rudolph, and sell it to Burns for $135,000.

The plaintiff testified, and it is conceded upon the record, that he had never heard of Jabez Burns and had nothing whatever to do with the negotiation and transaction, and heard nothing at all about ■ it until after it had been completed.

So that upon the initial conversation in April, 1907, when be called Mahoney’s attention to the Rudolph property, with the statement that it could be bought for $50,000, he claims, the right to ' recover commissions upon a transaction occurring a year and three months thereafter, of which he had never heard until it was entirely completed, carried out by another broker, to whom the plaintiff had . never mentioned Mahoney’s name, and with a customer of whom the plaiptiff had never lieard. It seems to me to hold that the plaintiff had made out a cause of action, upon these facts, would be the equivalent of saying that if an owner or proposed purchaser ever mentions a piece of property to any broker, and thereafter at any time, and under any circumstances, and: through any 'intermediaries should happen to sell or buy, he would.be subject to suit ■ by whatsoever broker lie may have chatted with. Such is not the law. The broker must establish that he was duly employed and that he did perform his services by procuring a customer ready, willing and able to make the contract-upon the terms proposed. The evidence wholly fails, it seems to us, to support that proposition. ,

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

Ingraham, P. J, Laughlin, Miller and Dowling, JJ., concurred.

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