
    Lewis H. May Company, Respondent, v. Holland Holding Company, Appellant.
    First Department,
    April 4, 1913.
    Principal and agent — broker’s action for commissions — proof not justifying recovery.
    Action by a real estate broker to recover commissions for’alleged services rendered in finding a purchaser for lands. Evidence examined, and-ZieM, that the plaintiff was not entitled to recover in that it failed to show that it was the procuring cause of the sale.'
    
      Appeal by the defendant, the Holland Holding Company, 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 28th day of October, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of October, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Benjamin N. Cardozo of counsel [Harold Swain and Albert J. Shaw with him on the brief], Albert J. Shaw, attorney, for the appellant.
    
      Harrie C. Manheim of counsel [Louis Susman and Leonard F. Fish with him on the brief], William Paul Buchler, attorney, for the respondent.
   Clarke, J.:

The defendant company owned Nos. 20-22 West Thirty-seventh street. The plaintiff is a corporation engaged in the real estatebroker age business and throughout the transactions in controversy was represented by one Mullowney. In the latter part of January, 1911, Mullowney telephoned Mr. Todd, the president of the defendant, that he was looking for a plot in the Thirties, between Fifth and Sixth avenues, and was informed that Mr. Todd had forty or forty-two feet on West Thirty-seventh street, for which the price asked was $202,000. Mullowney thereupon offered the property to a firm by the name of Thrush & Hirsch, with whom, however, the negotiations came to nothing. Mullowney testified that he suggested the addition of the adjoining parcel, No. 24, and there was talk about that whole plot, but that it was too large for these people and they dropped out.

Mullowney says that he did nothing more until about the middle of April. On the seventeenth or eighteenth of April one Marc Lowenthal, another broker, called at the office of the plaintiff and wanted to know if they had a plottage on Thirty-seventh or Thirty-eighth streets. Mullowney answered that they had two parcels, one on Thirty-seventh and the other on Thirty-eighth street. He testified that Lowenthal said, “we will buy it with a loan, or we will lease it if we can get a building financed for it,” and the lease would be for twenty-one years at $35,000 a year. Mullowney answered, as plaintiff claims, that the price asked for the plot on one street was $350,000 and that for the other $335,000., but that he could not talk about a lease without seeing the owner. He asked who the prospective buyer was, but Lowenthal said;- “ It don’t make any difference who he is, he is a lace importer on East 23rd street.” - Up to that timé there was no connection between Mullowney and Lowenthal. They were: brokers each engaged ■ in his own business: ■

Mullowney went to see' Mr. Todd April tw.enty-first, and told him, according to his story, that if the adjoining house, . No.- M, could be procured,, he had a customer who would pay a rental of $35,000 for twenty-one years: He did not mention the customer’s naime; he did not know it.

- On April twenty-fifth another broker, Shroder, came to Mullowney and asked whether he had any plottage on Thirty-seventh or Thirty-eighth streets. He deceived from Mullowney Mr. Coleman’s property and Mr. Todd’s. On April twenty-seventh Me returned.saying that he was. too late; that the Thirty-seventh street property had been offered to his man two days before ¡by another broker. “ Who is your man?” asked Mullowney. Shroder replied, “He is a lace importer on East 23rd strept.” ' Mullowney answered, “ that sounds like the same fellowithat Lowenthal is working with.” Shroder then told him that the man’s name was Julius Sternfeld. That was the first time that Mullowney had heard it. He rang up Lowenthal on the telephone and said: “Who is that fellow you are working ¡with on 23rd street ? And he says, ‘ His name is Julius Sternfeld.’ ■ And I said, ‘what is yóur idea of telling me that he is out of town for ten days; I have a man sitting here who has just left his office.’ He said, ‘I told you that he was out of town for ten days as there is another matter on 38th street and if the ¡38th street matter goes tlirough there is nothing doing on Bltih street. * * * I presented the matter to him; I put four matters up to him and-he had the other three. * * * This man is close to me, don’t be afraid, .there will . be nothing done with him except through this man.’ And I said, ‘ it’s funny!you told me he was oxit of town ’ and he said, ‘ he did not want to be annoyed. I wanted to work with him on 38th street.’ * * * Up to that time I had never seen Mr. Sternfeld; I had no dealings at all with Mr. Sternfeld or his company. The only way I was connected with him was in my deals with Lowenthal and Shroder.” He further testified that he had never had any further talk with Todd until after the publication of the purchase.

Lowenthal’s offer to Sternfeld is in writing, dated April 25, 1911, as follows: On behalf of the principal I offer the following: Will construct a twelve story loft building to suit at No. 20, 22 and 24 West 37th St. on plot 63-11x98-9 and lease for 21 years at $35,000 net per annum.”

This was a proposition to lease and not to sell.

The plaintiff’s case depends upon three points: First. That Mullowney first suggested to Todd the getting together of the property for sale. Second. That with the authority of Todd he offered it to Lowenthal for his client. Third. That Lowenthal offered it to Sternfeld, and so when Todd sold to Sternfeld the brokerage was earned by plaintiff, Mullowney and Lowenthal working together for it. The defense denied that the sale had been brought about in any manner by the efforts of Mullowney or Lowenthal, but in an entirely independent way by other brokers who never heard of plaintiff or its alleged agents in connection with the transaction, and that to these independent brokers the brokerage had been paid. Mr. Todd said he first talked with Mullowney over the telephone in January, 1911. He told him that 20-22 West Thirty-seventh street was for sale with a loan, the price was $202,000. Nothing was said about No. 24. He received a letter dated February seventh: “We have placed your property20-22 West 37th St., 40x98'-9" before Henry Thrush and S. Morrell Hirsch, Builders, 115 Bway, at the price spoken of over the phone in our conversation of a few days ago, namely, $202,000 with a loan of $2,100 per front foot for 12 story loft building and will report to you how the proposition is progressing later.” Nothing further was ever reported about Thrush & Hirsch. In April Mullowney asked about the possibility of acquiring No. 24 and leasing it for a term of years at an annual rental of $35,000. He did not say anything about who the proposed party was, or where he was located. Todd told him there was a possibility of getting the property bnt he would not build. He said nothing about a proposed, price for selling the three houses. At no time “ did I have any conversation with Mr. Mullowney or any one representing the plaintiff, in which I authorized them to procure a purchaser for the three properties 20, 22 and 24.”

Cooper, a broker, had been coming to his office occasionally for several years. The first of May he was trying to fix a price that Todd would buy and sell No. 24 with 20 and 22. “I told-him I did not own the property * * *, No. 24, but I thought it could be bought! * * * He said he wanted to bring in a party and see if we could not get together on a deal. * * * He said it was Julius Sternfeld. Up to that time I had never met Mr. Sternfeld * * * or had any dealings with him. Mr. Sternfeld came in the next. day with Cooper and we had quite a- long chat.j * * * There was. considerable negotiation done with regard to terms and price; but nothing definite. * * * I offered’a price * * * for the purpose of purchase *. * * — $335,000. * * * Nothing whatever was said at this interview about a proposed; lease of the property from my company to Sternfeld. * * '* The entire subject was a sale. Nothing was concluded between us on that day.” The next day there was further negotiations and a contract was signed. “Inithe negotiations that I had with Mr. Sternfeld down to the time that I signed the contract with him * ’ * * it was nbt brought to my attention in any way that Mr. Sternfeld or;any of his corporation had ever had any -dealings with the Lewis H. May Company dr any one connected with them. I pai¡d Cooper a brokerage in the transaction. I never met Mr. LoWenthal in connection with this property or had any communications with him. I never met Mr. Shroder in connection with this property, or the sale of it, or had any communications With him whatever.”

The contract for the purchase of No. 24 West Thirty-seventh. street was .signed!on May fifth,, and the contract for the sale of the property in its entirety was signed the same day. “Douglas Robinson and the Charles F. Brown Company first put the idea into my head of getting 24. That was the early part of January, * * * the very day I signed the contract for 20.”

Cooper testified! that early in April he had been given a letter of introduction by Mr. Prager, attorney, to Mr. Sternfeld, and took up with him the purchase of 9 and 11 West Thirty-eighth street. Sternfeld told me positively that he would not purchase 9 and 11 which he had practically closed a deal on, * * * as he could not finance it. I suggested to him that I could probably get him a plot financed on 37th Street, and he asked what the property was, and I told him that the property I had in mind, the one had forty feet and he would likely buy adjoining lot and would make him a loan. * * * That was the 1st of May. * * * Late in the afternoon of May 1st [I had a] talk with Mr. Todd. * * * I first named Sternfeld to Todd. * * * I introduced Mr. Sternfeld to Mr. Todd the next day. Q. And up to that time that you introduced them did you know anything about any communication that Mr. Mullowney or the Lewis H. May Company might have had with Sternfeld ? A. I didn’t know until this morning in this trial.” Sternfeld testified that he first met Todd about May 5, 1911, having been introduced by Cooper, whom he had known for a month, having been recommended to him by his lawyer, Prager; that Cooper was the first person who suggested to him a proposed purchaser of the premises 20-22 and 24 West Thirty-seventh street; that Lowenthal never made any proposition in regard to these properties except the one in writing — which was for a loan; that he never had any dealings with' plaintiff with regard to the purchaser of the 20-22 and 24. Randolph testified that he went to Mr. Todd on the first of May and asked if there was any possibility of acquiring 24; that he represented some people who would be interested to acquire a plot, with certain arrangements, and Todd said he could probably acquire the adjoining property provided he could get a satisfactory man to do business with. He did not know at that time that anybody else other than himself or Cooper had made any proposition to Sternfeld with reference to that property.

It is established that Mullowney had absolutely nothing to do with the negotiations, terms, prices or anything else, out of which grew the contract between Todd and Sternfeld. The first thing he knew about it was when he saw the completed transaction in the newspaper. He was not given the property to sell by Todd, nor asked to purchase by Sternfeld. He did not know Sternfeld, and of course he did not introduce him to Todd. He is trying to take advantage of an independent transaction because at some time he had ■ a talk about an entirely different transaction with the defendant.

There is no foundation in the evidence for the finding that he or Lowenthal and hence the plaintiff — was the procuring cause of this sale. Plaintiff has failed to establish by satisfactory evidence that it did something substantial, that it was the efficient and procuring cause of the sale. The law has been recently restated in Haase v. Ullmann (148. App. Div. 40) and Wynus v. Utz (152 id. 756). The case should have been disposed of by the court on the motion for a direction by the defendant.

The judgment and order appealed froffi should be reversed, and judgment ordered for the defendant, with costs and disbursements to the appellant.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed and judgment ordered for defendant, with .costs. Order .to be settled on notice.  