
    Frederick Southack and Alwyn Ball, Jr., Respondents, v. Adelia D. Ireland, Appellant.
    First Department,
    November. 1905.
    Beal estate broker’s contract for commissions—failure to show employment— burden on sub-agent to show authority to employ him— erroneous refusal to charge.
    In an action by real estate brokers against the owner for commissions in procuring a lessee, there is a total failure of proof of employment, when the only evidence is that plaintiffs’ representative, while acting as agent for the lessee, called upon the defendant’s son, himself a real estate broker, and negotiated the lease. As the plaintiffs knew that the defendant’s son was her broker, the burden was upon them to show his authority to employ them, for a real estate broker has no authority to employ a sub-agent.
    Such brokers alleging a contract with the owner, cannot recover on proof of an agreement with the owner’s agent to divide the commissions.
    It is error to refuse to charge that a stipulation by the defendant' that her son had charge of her real estate is insufficient to show the authority of such son to employ a sub-agent.
    
      Appeal by the defendant, Adelia D. Ireland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 15th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of January, 1905, _ denying the defendant’s motion for a new trial made upon the minutes. .
    
      George E. De Laey, for the appellant.
    
      Edgar J. Ifathan, for the respondents.
   Laughlin, J.:

This is an action by" real estate brokers against the lessor, who 'Was also the owner of premises Ho. 218 Fifth avenue, to recover commissions at the usual rate of one per cent, as- alleged, for obtaining a tenant for three years at a rental of $16,000 per annum. The ' defendant put in issue the material allegations of the complaint and alleged that she employed her own brokers to effect the lease and they, without her knowledge or au thority, employed .the plaintiffs to assist them upon an agreement to divide the ■ commissions • equally between them. The plaintiffs called as- a witness, one Meekeiy a broker connected with ” their firm, who testified that, he had dealings with' the defendant through her son, who is a member of the firm of Ireland & Strong who are also real estate brokers; ■ that he “ closed ”■ two previous leases for the premises in question through the defendant’s son ; that he had .never met the defendant; that bills were rendered to Messrs. -Ireland and Strong for commission's on these prior transactions and were paid; that he called on-the- defendant’s son at the. office of Strong & Ireland “ to see ” if the property was in the market for a term of years “ as I had' a tenant who wanted it,” and was informed' by the defendant’s son that he thought lie could cancel the existing leases;', that he went again and the' defendant’s son said, “ If you -get me a proposition, I ¡think we can do business;” that' “I Went to see the people that I represented,” and again called on defendant’s son ; that I told Mr. Ireland I had an offer of $16,000 a year for the store" and basement 218 Fifth- avenue, .mentioning my client’s name, the International Silver Company, for a term of five years. Mr, Ireland said he would not lease for a term of five years, but he would entertain a proposition at that price to lease it for a term of three years from May 1st, 1902;” that on. reporting this fact to the company he was authorized to take the lease and reported to Mr. Ireland that he had “ closed the matter * * * for a term of three years; ” that the customary charge for negotiating a lease for three years or over was one per cent of the gross amount. On cross-examination the witness testified that one of the prior leases was negotiated with the manager of the premises and the other was negotiated with •Mr. Ireland; that he had no conversation with Mr. Ireland about commissions at any time; that the commissions on the two prior transactions were $7 and $12 respectively; that he knew that Mr. Ireland was the son of the owner of the premises. It is conceded that the lease was executed. The plaintiffs also called Mr. Wilcox, of the International Silver Company, who testified that the premises were brought to his attention by Mr. Meeker, whom he authorized on behalf of his company to offer $16,000 a year for a lease of the premises for three years. It was admitted that “ the firm of Strong & Ireland, or the defendant’s son, Mr. John De Ooursey Ireland, had the charge and management of the premises.” At the close of the plaintiffs’ case the defendant moved for a nonsuit on the ground, among others, that the plaintiffs had shown no authority in Mr. Ireland to employ them or any ratification of their employment, or knowledge that they were acting, or assuming to act, on her behalf, and that on the evidence they -were acting as the agents of the International Silver Company. The motion was denied and exception taken. The defendant called her son and one Keller, who was connected with her son’s firm at the time. They gave testimony tending to establish the facts pleaded by defendant. At the close of the evidence the motion for a nonsuit was renewed. It was denied and defendant excepted. Her counsel then moved for a direction of a verdict,, and it was denied and her counsel excepted. Counsel for the defendant requested' the court to charge the jury, among other things, “that the stipulation of the defendant in'evidence providing ‘that the firm of Strong & Ireland, or her son, Mr. John De Ooursey Ireland, had the charge and management of the premises 218 Fifth avenue during the year 1902’ is itisuffit@ show authority to employ a sub-agent at tediEW pro® cúre a lease.” This was declined and aii exception taken. Counsel for defendant also requested the court' to charge “ that mere knowledge of the owner that a real estate' broker is endeavoring to lease her property will not charge the owner with a ratification of an unauthorized act of a relative in employing the broker.” This ' was declined and an exception was duly taken.

There was not a scintilla of evidence when, the plaintiffs, rested of an employment by the defendant or by any one authorized to represent her. The plaintiffs merely show that their representative, acting as agent for the lessee, called on the defendant’s representative and negotiated the lease. The defendant having gone into her case, the plaintiffs are, of course, entitled to the benefit of the evi7 dence introduced in behalf of the defendant in aid of their case, but this will not sustain the judgment. According to the testimony introduced in behalf of the plaintiffs, they were employed by the defendant. According to the testimony introduced in behalf of the. defendant, they were employed by the defendant’s agents upon an agreement to divide the. commissions. If it be assumed'that the jury seized hold of this evidence in aid of the plaintiffs, then error was committed in refusing to charge the requests to which exception was taken by counsel for the defendant, and this would necessitate a new trial. If, on the other hand, the jury disbelieved the testimony of the defendant’s son, then they had only the testimony introduced in behalf of the plaintiffs which did not show-an employment. Moreover, the plaintiffs could hot recover in this action if the facts are as testified to by defendant’s son for the recovery would' not be according to the allegations of the complaint. They have not pleaded such a contract. They have pleaded, an employment of them as agents at an agreed commission of one per cent. They have failed to prove either an employment or an agreement' as. to the compensation. Moreover, they concede that their negotiations, were exclusively with the defendant’s son" who was known to them to be her broker, The burden was upon them-of showing his. authority to employ them for her. A broker or real estate agent authorized to buy or lease premises presumptively-is not authorized to employ a sub-broker or sub-agent. (Brady v.American Machine & Foundry Co., 86 App. Div. 267 ; Haynes v. Fraser, 76 id. 627; Benedict v. Pell, 70 id. 40 ; Fowler v. Hoschke, 53 id. 327; Car roll v. Tucker, 2 Misc. Rep. 397 ; Bonwell v. Howes, 15 Daly, 43; Harper v. Goodall, 62 How. Pr. 288.)

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event,

O’Brien, P. J., Pattersoíst, Ingraham and McLaughlin, JJ., concurred.

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