
    Nicholas Lopard, Appellant, v. William Fritz, Respondent.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Section 6403 Penal Co3e construed — When the same unavailable as defense to an action by broker for commissions — Estoppel.
    Section 6403 of the Penal Code, -which makes it a misdemeanor to offer real property for sale without written authority from the owner, is aimed against unwarranted sales by brokers. Hence the husband of the true owner of real estate, who had represented himself as the owner in writing, cannot assert the provisions of the Penal Code as a defense when sued by a broker for commissions. He is estopped by his representation, and is the owner for the purposes of the suit.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Few York, second district, borough of Manhattan, rendered in favor of the defendant.
    
      Igna.ce I. Apfel, for appellant.
    Julius Fischer, for respondent.
   Bischoff, J.

The defendant, representing himself to he the owner of certain property, engaged the plaintiff to procure a purchaser at a price named and agreed, in writing, to pay him $100 for his services in the event of success. Plaintiff procured the purchaser within the terms of the agreement, but the defendant, when sued for the agreed compensation, defended upon the ground that his wife, not he, was the owner, and successfully invoked the provisions of section 640d of the Penal Code, whereby the act of offering real property for sale by a person not possessed of authority in writing from the owner is made a misdemeanor. It is difficult to find any basis for applying the statute referred to in aid of a party situated as is this defendant.

The statute is aimed against the unwarranted offers of sale by brokers, and the assertion against owners of unfounded and unjust claims for commissions (Whiteley v. Terry, 83 App. Div. 197, 202), but I do not conceive the meaning to he that a broker, honestly believing that he is authorized by the owner, in the form required by the statute, must undergo the expense of searching the title to the property, lest he risk a criminal prosecution and conviction.

Where the broker seeks to charge the owner, with whom he actually negotiated, hut from whom he had no written authority, this statute may well be interposed, but to permit the supposed owner, who so described himself in writing, to assert his own misrepresentations in avoidance of his contract to pay for services rendered, would be to give a meaning to the statute beyond the bounds of reasonable interpretation.

For the purposes of the enforcement of the contract in suit, the' defendant is the owner, since he is, estopped from a contrary assertion, and no policy of the law is contravened by absolving the plaintiff from a violation of the statute referred to, since he dealt with the apparent owner, relying upon the only information which was reasonably open to him and thus satisfied the statute according to its spirit, if not, indeed, to the very letter adopting the reasonable meaning of the word owner ” for the purposes of a prosecution.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new- trial granted,' with costs to appellant to abide event.  