
    Max Goldstein, Appellant, v. Marie G. Scott, Respondent.
    
      Broker's commissions — not recoverable on a quantum meruit where the contract of employment was made in Mew Jersey and was not in writing.
    
    A real estate broker, who rendered, services upon an exchange of real property under a contract of employment made in the State of New Jersey, cannot maintain an action in the State of New York to recover the value of said services either upon his contract of employment or upon a quantum meruit, where it appears that, by the express terms of the New Jersey Statute of Frauds, the broker was not entitled to any compensation for his services in the transaction because of his failure to procure from his employer written authority to make the exchange.
    Laughlin, J., dissented.
    
      Appeal by the plaintiff, Max Goldstein, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of February, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order, entered in said clerk’s office on the 21st day of March, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Sigmund Horkimer, for the appellant.
    
      Herbert J. Hindes, for the respondent.
   Patterson, J.:

In an action to recover the value of services which the plaintiff claimed to have rendered to the defendant as a broker in making an exchange of a parcel of real estate belonging to her, for another piece of property belonging to a third party, the court at the trial directed a verdict for the defendant. From the judgment enteréd thereupon, this appeal is taken.

The complaint sets forth that between certain dates the plaintiff rendered services to the defendant, at her request, as a broker in the exchange of property; that such services were reasonably worth the sum of $875, no part of which had been paid. The defendant, in her answer, denied the allegations of the complaint, and then set up that the alleged promise or request, if any, charged in the complaint, was made in the city of West Hoboken, county of Hudson, State of New Jersey; that, by the general statutes of the State of New Jersey relating to frauds and perjuries, it is provided in the 10th section thereof as follows: That no broker or real estate agent selling or exchanging land, for or on account of the owner, shall be entitled to any commission for the sale or exchange of any real estate, unless the authority for selling or exchanging such land is in writing and signed by. the owner or his authorized agent and the rate of commission on the dollar shall have been stated in such authority.” This section of the New Jersey Statute of Frauds has direct application in this case. No action could be maintained upon a contract of employment, for under the allegations of this complaint the plaintiff was authorized to make the exchange of the lands. It is not disputed that if any contract were made it was made in the State of Hew. Jersey. That being so, it is to be. governed by the law of that State. In Wilson v. Lewiston Mill Co. (150 H. Y. 314) it was held that where, within the contemplation of the parties to a contract, that contract is to be considered as made in another State (as in that case, the State of Maine), the Statute of Frauds of that other State must control in determining the validity of the contract.

It is urged, however, that, although a contract of employment was void by the statute of the State of Hew Jersey, still the plaintiff might ignore that contract and sue upon a quantum meruit for services rendered to, and accepted by, the defendant in the exchange of the properties. But the statute of Hew Jersey in terms prohibits the recovery of any compensation for services rendered contrary to its terms, and is not a statute merely relating to procedure or administration, but contemplates that even where services are rendered and property is sold or exchanged by a broker there shall be no right to compensation unless the statute is complied with. But even if that were not so, the plaintiff would not be entitled to recover under the allegations and proof in this action, that proof being insufficient to show that the plaintiff did himself effect the exchange.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Laughlin, J., dissented.

Judgment affirmed, with costs. 
      
       General Statutes of New Jersey (1709-1895), p. 1604, § 10.— [Rep.
     