
    Van Praag & Company, Respondent, v. Aaron Weinberg, Appellant.
    (Supreme Court, Appellate Term,
    May, 1909.)
    Auctions and auctioneers — The sale and rights thereunder — Effect of irregularities — Want of license.
    Where, at an auction sale conducted by a corporation as auctioneer, no deposit was required of a purchaser who represented that he was financially responsible, and, upon his failure to pay for merchandise sold to him, it was resold by an employee of plaintiff who was not a licensed auctioneer, the plaintiff is entitled to recover the difference between the amount of the original sale and the amount of the resale, but not commissions upon the resale.
    The act of the employee in making the resale at auction might subject him to penalties prescribed by statute but would not invalidate the sale.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan, entered upon a verdict of a jury in favor of the plaintiff, and from an order denying a motion to set aside the verdict.
    Samuel J. Goldberg, for appellant.
    Isaac V. Shavrien, for respondent.
   Seabury, J.

The plaintiff, a corporation, is engaged in the business of a commission merchant and auctioneer and, as such auctioneer, claims to have conducted a sale of merchandise, on July 20, 1908, and to have sold merchandise to the defendant for $1,885. The defendant representing himself to be financially responsible, no deposit upon this sale was required of him. He failed, however, to pay for the merchandise; and it was resold, on July twenty-ninth, and the plaintiff has recovered judgment for the difference between the amount of the original sale and the amount of the resale.

This case was before this court upon a former appeal, when a judgment recovered by the plaintiff was reversed because of the exclusion of certain competent evidence that was offered.

There is no proof in the record that the plaintiff corporation is licensed as an auctioneer. The original sale was made by the president of the plaintiff, who was a duly licensed auctioneer. At the time of the resale, the president of the plaintiff, who was the only licensed auctioneer in the employ of the plaintiff, was prevented by illness from conducting the auction; and it was conducted by another employee who was not a licensed auctioneer. The fact that the resale was not conducted- by a licensed auctioneer is the chief ground upon which the appellant seeks the reversal of this judgment. This fact might subject the plaintiff or the person conducting the auction to the penalty prescribed by statute; but it does not relieve the defendant from the obligation he incurred by his bid at the original sale, or furnish any justification for his present attempt to repudiate the contract which he then made. Bogart v. O’Regan, 1 E. D. Smith, 590.

The rule applicable to this case, as enunciated by the authorities, is concisely and correctly stated in 4 Cyc. 1048, as follows: “A sale at auction made by a person not licensed is good, even though the act of selling subjects the auctioneer to a penalty.”

In Gunnaldson v. Nyhus, 27 Minn. 440, it was held that a note given for property purchased at an auction sale is not void because of the failure of the auctioneer to obtain a license as required by statute.

Other grounds of error are assigned, but they were not prejudicial to the defendant or of such importance as to require discussion. Plaintiff had no right, however, to charge commissions upon the resale, amounting to the sum of sixty dollars.

Judgment modified by reducing the same by the sum of sixty dollars and, as modified, affirmed, with costs.

Dayton and Lehman, JJ., concur.

Judgment modified by reducing same to sixty dollars and, as modified, affirmed, with costs.  