
    Alfred K. Greene, Respondent, v Maynard Hellman, Appellant, et al., Defendants.
    Argued September 4, 1980;
    decided October 21, 1980
    
      POINTS OF COUNSEL
    
      Paul J. Yesawich, III, for appellant.
    I. The decision below should be reversed because there is no proof that Driscoll had actual authority to act for Heilman. Moreover, Driscoll did not have apparent authority to act for Heilman because no representation was ever made to Greene that Heilman owned the plaza, and because Greene never relied on Driscoll’s purported ability to act for appellant. (O. A. Skutt, Inc. v J. & H. Goodwin, 251 App Div 84; Oldman-Magee Boiler Works v Ocean & Inland Transp. Co., 210 App Div 183; Ford v Unity Hosp., 32 NY2d 464; Stanton v Hawley, 193 App Div 559.) II. The lower court’s holding that the presence of Greene’s name in the purchase offer required Heilman to check with the purchaser and resolve the matter of possible commissions should be reversed because the owner’s consent to the broker’s rendition of unsolicited services does not justify a conclusion that the owner intended to enter into a contractual relationship with the broker and pay for his services. (Naum v Wiltsie, 271 App Div 169; Meltzer v Flying Fame, 224 App Div 41; McVickar v Roche, 74 App Div 397; Fowler v Hoschke, 53 App Div 327; McGrath v Bagley, 273 App Div 822; Warsawer v Burghard, 234 App Div 346; Ficor, Inc. v National Kinney Corp., 67 AD2d 659.) III. The decision below awarding plaintiff a commission should be reversed because Greene merely brought the property to the attention of the ultimate purchaser, and never effected a meeting of the minds of the buyer and seller. (Munson v Tilley, 45 AD2d 806; Newberry & Co. v Warnecke & Co., 267 App Div 418, 293 NY 698; Sibbald v Bethlehem Iron Co., 83 NY 378; Byrne, Bowman & Forshay v 488 Madison Ave., 11 Misc 2d 587, 286 App Div 826; Boyd v Improved Prop. Holding Co., 135 App Div 623; Gardner v Pierce, 131 App Div 605; Lord v United States Transp. Co., 143 App Div 437; Matter of McCrea, 47 Misc 2d 361.) IV. The decision below awarding plaintiff a commission based upon Heilman’s alleged breach of contract should be reversed because no contract claim was pleaded against Heilman and no motion to conform the pleadings to the proof was made. (Walrath v Hanover Fire Ins. Co., 216 NY 220; Northam v Dutchess County Mut. Ins. Co. of Poughkeepsie, 177 NY 73.)
    
      James W. Kiley for respondent.
    I. Both the trial court and the court below resolved the question of the credibility of the witnesses in plaintiff’s favor and that determination may not be disturbed by the Court of Appeals. (Foreman v Foreman, 251 NY 237; Noce v Kaufman, 2 NY2d 347.) II. The court was correct in its determination that Heilman was aware of plaintiff’s involvement and had in fact authorized defendant Driscoll to offer the plaza for sale. Consequently, whether the authority granted to Driscoll was actual or apparent, defendant Heilman is responsible for plaintiff’s commission. (Wen Kroy Realty Co. v Public Nat. Bank & Trust Co. of N. Y., 260 NY 84; Levine v Shell Oil Co., 28 NY2d 205.) III. Even assuming Heilman had not given Driscoll apparent or actual authority to sell the plaza, the facts clearly indicate Heilman ratified Driscoll’s unauthorized acts and therefore remains liable to plaintiff for his commission. (Ramsay v Miller, 202 NY 72; Hamlin v Sears, 82 NY 327; Fowler v Hoschke, 53 App Div 327.) IV. This court properly held that plaintiff was the procuring cause of the sale of the plaza to I. Gordon Realty Corporation. (Salzano v Pellillo, 4 AD2d 789; Saft v Dorn, 24 AD2d 1072, 18 NY2d 631; Kalmanson v Callahan, 276 App Div 983; Busher Co. v Galbreafh-Ruffin Realty Co., 22 AD2d 879, 15 NY2d 992.) V. Plaintiff’s first cause of action properly alleged a cause of action against defendant Heilman for breach of contract and therefore the verdict against defendant Heilman was proper. (Diamond Int. Corp. v Little Kildare, 28 AD2d 1192, 22 NY2d 819; Dampskibsselskabet Torm A/S v Thomas Paper Co., 26 AD2d 347; Diemer v Diemer, 8 NY2d 206.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal by the defendant Maynard Heilman comes to us in the context of a claim by plaintiff Alfred K. Greene, a real estate broker, who asserts he was wrongfully deprived of commissions due him on the sale of a shopping center owned by Heilman to I. Gordon Realty Corporation. Greene had been invited to procure a buyer for-the property by the defendant Richard E. Driscoll. A central issue is the applicability of the agency doctrine of apparent authority in determining whether the codefendant Driscoll’s arrangement with Greene was binding on Heilman. Disputed too is whether Greene was the procuring cause of the ultimate sale, consummated as it was directly between the buyer and seller about a year after Greene had informed Gordon that the property was for sale.

In all, the plaintiff named five defendants. Other than Heilman and Driscoll, these included two corporations and one other individual. The corporate defendants, Todd Mart, Inc. (Todd), and West Wayne Shopping Plaza, Inc. (Plaza), formerly owned the center. Heilman’s other codefendant, one Morris Diamond, like Driscoll, had served with Heilman as an officer of these and other real estate management, ownership or construction corporations.

The complaint contained three causes of action. The first, against all the defendants for breach of contract, asserted, inter alia, that mainly Driscoll and later, to a lesser extent, Diamond, each acting as an individual and as a "principal” of the two corporations, had made the arrangements to hire Greene to procure a buyer for the center and that, in doing so, they had falsely represented that Todd was its owner. Incorporating these allegations by reference, the second count sounded in fraud against Driscoll and Diamond alone, while the third rested on the theory that all the defendants had joined in a civil conspiracy to deprive the plaintiff of his commissions. In a nutshell, Heilman’s defense, aside from its general denial of the conspiracy claim, was that Driscoll had lacked authority, actual or apparent, to contract with Greene on behalf of Heilman and that, in any event, the former was not the procuring cause of the sale to Gordon.

After a nonjury trial, the trial court, largely on the conclusory rationalization that the "corporate connections” between Driscoll and Heilman "were sufficient to cloak Driscoll with the apparent authority not only to manage but to sell such properties as the corporations * * * formerly own[ed]”, handed down a decision solely against Heilman and on the contract cause of action alone. Doing so, the Judge stressed the fact that, in the written offer which immediately preceded the eventual contract to sell, the purchaser recited that he had "received a statement covering West Wayne Plaza from Alfred K. Greene”.* Reasoning that, since the plaintiff was thus "made whole by the judgment on the first cause of action no damage has ensued as a result of the alleged conspiracy [or fraud]”, the court then proceeded to dismiss the remaining counts against all those named.

Affirming the judgment entered on this decision, the Appellate Division, over a dissent by Justice Cardamone, took the position that the cited language in the purchase offer placed a burden on the defendant, presumably at his peril, "to check with the purchaser and settle with him the matter of his potential claim before accepting the offer”. It also found sufficient evidence in the record to support a finding "that the plaintiff was the procuring cause of the sale”. For his part, the dissenter, who would have reversed and directed that all three causes of action be retried, after noting that the trial court had not found that either Driscoll or Diamond had actual authority to deal with Greene on Heilman’s behalf, concluded that, as a matter of law, the alternative of apparent authority had not been established. He also disagreed with the consequences attributed by his colleagues to the purchase offer language. Since we do not find fault with either of these positions, we believe the order affirming the judgment should be reversed. Our analysis follows:

We begin with a more detailed recitation of the controlling facts, many undisputed. The initial communication relevant to the case was a conversation between Driscoll and Greene in October, 1974, during which the former indicated that he was interested in obtaining a buyer for the shopping center and certain other properties as a package. In response to Greene’s routine request for income and expense information, Driscoll immediately followed up by sending him existing operating statements prepared in the course of the management of the properties. Soon thereafter, Greene told Robert Gordon, who throughout acted for the Gordon corporation, that the center was on the market and furnished him with a photocopy of the statement. Greene admits that then and at all pertinent times thereafter he acted on the assumption that Todd, and not Heilman, owned the property and that Driscoll was acting for it. This despite the fact that Heilman’s ownership was a matter of public record, he having bought the property at a Sheriff’s sale some months earlier. It is agreed too that Driscoll never expressly did or said anything from which Greene could gather that Driscoll was acting for Heilman. Consistently, when Greene eventually elected to make a claim, he did so not by sending a bill to Heilman, but to Todd.

Perhaps most remarkably, the record is barren of even a hint that Heilman, whom a family health problem kept away from New York during most of the intervening months until the spring of 1975, was aware of Driscoll’s dealings with Greene, much less that he authorized them. Certainly, whatever motivated Driscoll to act on his own, whether it was a desire to make his marketing of the corporate properties more attractive by coupling them with this one, or whether it was a presumptuous assumption that Heilman would accept a fait accompli, or for whatever other reason best known to himself, none of these were ever shown to be acts, or even motivations, of Heilman.

These facts in mind, taking the proof most favorably to Greene, as we must in the posture of the affirmed findings on which this appeal comes to us, we observe that both Greene and Gordon testified that, although Gordon appeared "interested” in the property, he was not then ready to seriously consider buying it. Imminent bankruptcy of W. T. Grant, the now defunct chain store which was the property’s major tenant, and, to quote Gordon directly, "a number of other things we were doing at that time” kept him from even soliciting an asking price or making an offer. This attitude must have continued for at least a half year, because, whatever his inchoate "interest” amounted to, the unchallenged fact is that he never met, asked to meet or was invited to meet with anyone purporting to represent the owner of the property, and concededly not with Heilman. Neither, during all this time, did Greene ever show or offer to show him through the property, nor, significantly, at trial, could Gordon recollect that a second meeting or telephone call with Greene had ensued during the balance of that year.

We now shift our attention to the spring of 1975. Heilman, having just returned to New York, was faced with demands that the total of a large bank loan on which he was an obligor be reduced. While reviewing the possibility of liquidating some of his holdings with Joseph La Manna, his accountant, he was advised by La Manna that another one of his firm’s clients, I. Gordon Realty, had recently come into a large sum of money it was looking to invest. Following up on this independent recommendation, Heilman asked to meet with Gordon. It was this meeting from which there eventuated negotiations which were consummated by the sale of the center in the fall of 1975, by which time approximately a year had gone by since Greene’s unfruitful conversation with Gordon.

In sum, a fine-tooth-combing of the record discloses no proof that Heilman delegated power to choose Greene or any other broker to negotiate the sale of his property. There is no indication of any direct grant of such authority to Driscoll or, for that matter, to Diamond. Nor was Heilman responsible for any manifestations which, though indirect, would support a reasonable inference of an intent to confer such authority (see Restatement, Agency 2d, § 7, Comment c). Certainly, that Heilman, Driscoll and Diamond in common held stock, directorships or officerships in several corporations, whatever the powers they thus possessed with respect to the corporations’ affairs, did not, without more, give rise to any power to act with respect to each other’s personal property. In particular, mere authority to manage Heilman’s personal realty would not include authority to take steps to sell it (see Restatement, Agency 2d, § 52, Comment c). And, of course, Greene’s unsupported surmise — that Driscoll would not have contracted with Greene if he had not been commissioned to do so — but begs the question.

We turn then to the subject of apparent or, as it is sometimes called, ostensible authority, essentially the legal wellspring from which, absent actual authority, Trial Term and the majority at the Appellate Division thought Greene drew the right to hold Heilman for the acts of Driscoll. Apparent authority may exist in the absence of authority in fact, and, if established, may bind one to a third party with whom the purported agent had contracted even if, as in the present case, the third party is unable to carry the burden of proving that the agent actually had authority.

As with implied actual authority, apparent authority is dependent on verbal or other acts by . a principal which reasonably give an appearance of authority to conduct the transaction, except that, in the case of implied actual authority, these must be brought home to the agent while, in the apparent authority situation, it is the third party who must be aware of them (Ford v Unity Hosp., 32 NY2d 464, 473; Stanton v Hawley, 193 App Div 559, 560; see Restatement, Agency 2d, § 8, Comments a, c). Key to the creation of apparent authority is that the third person, accepting the appearance of authority as true, has relied upon it (Restatement, Agency 2d, § 27, and Comment a). As demonstrated in the case before us now, these criteria just were not met.

So also, the consequent failure to establish apparent authority was not offset by the lack of exception by Heilman to Gordon’s insertion of Greene’s name in the purchase offer. The first sentence in its brokerage clause merely acknowledged that Greene had provided Gordon with "a statement” covering the premises. It in no way declared that a commission was due on that account or that Greene had been the procuring cause. Instead, it carefully avoided the familiar boilerplate used to indicate which broker, if any, brought about the sale (see, e.g., Williston, Contracts [3d ed, 1 Forms], § 922, at p 184). So, in the clause’s second and only other sentence, the purchaser did no more than assure itself, as sophisticated purchasers usually do, that the obligation for "any” brokerage commission on the sale was to be the seller’s and not the buyer’s. Fairly read, this language manifested no intention to create a third-party beneficiary (see 2 Williston, Contracts [3d ed], § 356A; cf. Ficor, Inc. v National Kinney Corp., 67 AD2d 659).

The record here also lends no support to the charge that Heilman was a participant in the conspiracy charged by the third cause of action. There was nothing to show that he played any párt in Driscoll’s and Diamond’s alleged misrepresentations as to the ownership, the gravamen of the fraud pleaded in the second cause of action, which, in turn, specifically ascribed the fraud to Driscoll and Diamond only. Therefore, had the third cause of action not been dismissed by the trial court solely because it had decided to award damages on the first one, as to Heilman the third would have had to go by the board because no prima facie case had been made out.

For all these reasons, we conclude that no actual or apparent authority in Driscoll or Diamond to enter into the agreement has been established.

The trial court’s rationale for dismissal of the second and third causes of action against Driscoll and Diamond having thus been swept aside, we now give our attention to the procuring cause issue. For, to put it broadly, if it cannot be said that Greene brought about the sale, he at all odds would not be entitled to compensation. The remaining claims then bespeaking instances of damnum absque injuria, they too would have to fall.

It has long been recognized that a broker, save when he enjoys the benefit of a special agreement to the contrary, does not automatically and without more make out a case for commissions simply because he initially called the property to the attention of the ultimate purchaser (see Newberry & Co. v Warnecke & Co., 267 App Div 418, 421, affd 293 NY 698; Munson v Tilley, 45 AD2d 806, 807). If that were enough, given the enterprise which our competitive society prizes in its brokers and its salesmen, a veritable morass of claims to proprietary rights in their prospects would result.

That is not to say that, in order to qualify for a commission, the broker in all instances must have been the dominant force in the conduct of the ensuing negotiations or in the completion of the sale. But, however variable the judicial terminology employed to express the requirement that the broker must be the procuring cause, it has long been recognized that there must be a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation (see Lord v United States Transp. Co., 143 App Div 437, 454-455).

Sibbald v Bethlehem Iron Co. (83 NY 378), our seminal case on this point, articulating the prevailing rule (e.g., Lipe v Ludewick, 14 Ill App 372; Nielson’s Case, 236 Mass 1; Armstrong v Wann, 29 Minn 126; Earp v Cummings, 54 Pa 394), has made that clear. In Sibbald, after repeated efforts by the plaintiff to solicit an offer from his customer over a period of four months had been to no avail, negotiations initiated by the purchaser on its own led to a sale through another broker. The court held he was not the procuring cause of the sale because he had not brought together the "minds of the buyer and seller”. (Sibbald v Bethlehem Iron Co., supra, at p 382; see, also, Byrne, Bowman & Forshay v 488 Madison Ave., 11 Misc 2d 587, 590, affd 286 App Div 826 [broker who initiated negotiations for a lease of realty, eventually closed by another broker, never "discussed any of the basic and material details upon which the parties would reasonably have had to agree before a lease could be executed”].)

The facts in the case before us fall foursquare within the spirit of these cases. In essence, the most that can be said for Greene’s efforts is that he alerted Gordon to the availability of the property. Although he testified that, after his initial conversations with Gordon and Driscoll, he had spoken again to each of them on some other unrecorded and undated occasions, he did not claim that he had obtained a figure from either of them even then. He never arranged nor attempted to arrange for a meeting of these persons, much less of their minds. He never showed Gordon the property. He did nothing to excite a practical interest in negotiating, even by exploring, on his own or with the parties, such obvious questions as the ability of Gordon to make the purchase, whether there was a cure for a tax problem the record shows then confronted the property, or the effect of the expected commercial demise of the Grant tenancy. There was not even the slightest prodding towards any meeting of the minds from October, 1974 until the time six months later when Heilman and Gordon, prompted by each one’s then current financial picture and the happenstance that each was a client of La Manna’s accounting firm, independently and directly, and without any aid or intervention by Greene, on their own entered upon meetings, discussions and negotiations, things Greene never even suggested.

Over and above this, Greene’s indifference and inactivity, an attitude presumably conditioned by Gordon’s passivity, extended far beyond the months preceding the direct Hellman-Gordon dealings. As detailed previously, it also prevailed for the four or five months that elapsed from the time the negotiations between the principals got underway in the late spring of 1975 until the closing in September of that year. During all the latter period, Greene, if he knew the property was being sold, made no claim to any continuing interest and, if, perchance, he did not know, he did not so much as lift a finger to do anything towards a sale of the property, not even to the extent of proposing a single other prospect. In all, the entire picture smacks almost irrefutably of abandonment (see Sampson v Ottinger, 93 App Div 226).

Under these circumstances, even if it be said that Greene had "introduced to each other parties who otherwise would have never met” or had "created impressions which, under later and more favorable circumstances, naturally [led] to and materially [assisted] in the consummation of a sale”, a picture far more favorable to the plaintiff than the one we face here, as a matter of law his claim for commissions would have had to be dismissed (Sibbald v Bethlehem Steel Co., 83 NY 378, 383, supra). A fortiori, we so conclude here.

For all these reasons, the order of the Appellate Division should be reversed and the complaint dismissed, with costs.

Jasen, J.

(dissenting). In my view, the order of the Appellate Division should be affirmed.

The trial court found that the "corporate connections between Driscoll and Heilman-were sufficient to cloak Driscoll with apparent authority”. This finding of fact was affirmed by the Appellate Division. Nonetheless, the majority, rejecting this affirmed finding of fact, concludes that "a fine-tooth-combing of the record discloses no proof that Heilman delegated power to choose Greene or any other broker to negotiate the sale of his property.” Such a conclusion is reached by the majority only after reviewing the facts in the record and drawing inferences therefrom. This, we are unable to do. (NY Const, art VI, § 3.) The issue of whether Driscoll was cloaked with apparent authority is essentially one of fact. The finding by the court below that there was apparent authority, being affirmed by the Appellate Division, is beyond our review if there exists any factual support in the record for such a determination. (See, e.g., Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 491.) I believe that there is.

An examination of the record before us reveals that in June, 1974, defendants Heilman, Driscoll and Diamond held various positions in West Wayne Shopping Plaza, Inc., Todd Mart, Inc., and Montezuma Construction Company, Inc. Specifically, Heilman was the president of Todd Mart, Inc., and a vice-president in West Wayne Shopping Plaza, Inc., and the Montezuma Construction Company, Inc. Driscoll, on the other hand, was the president of West Wayne Shopping Plaza, Inc., and the Montezuma Construction Company, Inc., and a vice-president of Todd Mart, Inc. These companies had a variety of real estate holdings, one of which was the property involved in this appeal, the West Wayne Shopping Plaza.

In July, 1974, ownership of the West Wayne Shopping Plaza was transferred in a Sheriff’s sale pursuant to an execution issued on a judgment in favor of the Montezuma Construction Company, Inc., against West Wayne Shopping Plaza, Inc. For some unexplained reason, however, title to the West Wayne Shopping Plaza was recorded in the name of Heilman as an individual, rather than in the name of the judgment creditor, the Montezuma Construction Company, Inc.

Approximately three months later, in October or November, 1974, it is undisputed that plaintiff Greene, a real estate broker, was contacted by Driscoll on the telephone. Driscoll, who was known by Greene to be an officer of Todd Mart, Inc., notified Greene that the West Wayne Shopping Plaza, along with two other parcels of property purportedly owned by Todd Mart, Inc., were being offered for sale. Driscoll also indicated to Greene that a 5% commission would be paid if a willing buyer for these properties could be procured. It is further undisputed that Driscoll then supplied Greene with financial statements relating to the West Wayne Shopping Plaza and the other properties allegedly being sold by Todd Mart, Inc. Shortly thereafter, Greene contacted Robert Gordon, president of I. Gordon Realty Corp., and informed Gordon of the availability of the West Wayne Shopping Plaza. Greene also sent Gordon the financial statements of the plaza, now stamped with Greene’s name, which had originally been sent to Greene by Driscoll.

Thus, Greene was the first person to introduce Gordon to the plaza. Gordon testified that he was interested in the property from the beginning — that is, from the time he obtained the statements from Greene — and that his interest continued to grow from the fall of 1974 through the spring of 1975. Gordon also stated that during this time he visited the plaza on several occasions. Testimony from Greene and Gordon further reveals that during this time Greene had a number of conversations with Gordon concerning the sale of the property. In addition, Greene testified that in late October, 1974 he informed Driscoll of Gordon’s interest in the plaza.

In the early spring of 1975, negotiations took place between Gordon, Heilman and Driscoll with an eye toward the eventual sale of the shopping plaza. Meetings, sometimes attended by all three individuals, were held at the offices of Todd Mart, Inc. Moreover, Gordon on occasion would bring to these meetings the financial statements which bore Greene’s name.

Throughout these negotiations, no mention was made of the actual ownership of the West Wayne Shopping Plaza. In fact, Gordon, like plaintiff Greene, believed that Todd Mart, Inc., was the actual owner of the plaza. Moreover, Gordon was not made aware of Heilman’s individual ownership of the plaza until just prior to preparation of the final purchase offer.

In April, 1975, Gordon submitted a written offer to Heilman to purchase the shopping plaza. The purchase offer contained a clause denominated "Broker’s Commission” which recited that "Alfred K. Greene” had supplied Gordon with financial statements and that any broker’s commissions on the sale should be paid by Heilman. On June 27, 1975, Heilman made a counteroffer in which he made various modifications to the original Gordon offer. Heilman’s counterproposal, however, failed to delete the broker’s commission clause containing Greene’s name. Finally, on September 4, 1975, I. Gordon Realty Corp. purchased the shopping plaza. Thereafter, plaintiff Greene sought his 5% commission for securing Gordon as purchaser.

Based on the foregoing scenario, the trial court found that the "corporate connections between Driscoll and Heilman were sufficient to cloak Driscoll with apparent authority not only to manage but to sell such properties as the corporations in fact managed and controlled, and, such properties as the corporations owned — or — did formerly own.” I would agree.

As mentioned before, a finding of apparent authority essentially involves a factual determination. "[Wjhere [as here] no written authority of the agent has been proven, questions of agency and of its nature and scope and of ratification by or estoppel of the principal, if dependent upon contradictory evidence or evidence, though not contradictory or disputed, from which different inferences reasonably may be drawn, are questions of fact to be submitted to the jury upon proper instructions by the court.” (Hedeman v Fairbanks, Morse & Co., 286 NY 240, 248-249.) Therefore, in this action, tried without a jury, there was a factual basis upon which the trial court could find, as it did, that Driscoll was cloaked with apparent authority by Heilman to authorize the sale of the plaza. The majority at the Appellate Division agreed and affirmed.

The doctrine of apparent authority is an outgrowth of the equitable concept that "when one of two innocent persons must suffer from the act of a third person, he shall sustain the loss who has enabled the third person to do the injury.” (Walsh v Hartford Fire Ins. Co., 73 NY 5, 10.) So viewed, apparent authority can be expressed in terms of estoppel: "where a principal has, by its voluntary act, placed an agent in such a situation that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent has authority to perform a particular act and deals with the agent upon that assumption, the principal is estopped as against such third person from denying the agent’s authority.” (2 NY Jur, Agency, § 92, p 256; see Restatement, Agency 2d, § 8; cf. Palmer, Law of Restitution, §§ 14.15 — 14.16.) Stated somewhat differently, apparent authority " 'implies a transaction itself invalid, and a person [the principal] who is forbidden for equitable reasons to set up that invalidity.’ ” (Wen Kroy Realty Co. v Public Nat. Bank & Trust Co. of N. Y., 260 NY 84, 92.)

From the evidence presented at trial, it could be inferred that Heilman was aware of Driscoll’s activities in contacting Greene. Both Heilman and Driscoll were interlocked financially and as officers in a number of real estate management and development corporations, including the shopping plaza involved in this litigation. Moreover, as the president of Todd Mart, Inc., it is not unreasonable to conclude that Heilman was aware of the activities of Driscoll, a vice-president in the same corporation, in procuring Greene’s services in connection with the sale of the shopping plaza property. This conclusion is supported further by the fact that negotiations for the sale of the shopping plaza took place in the offices of Todd Mart, Inc., and were participated in by both Heilman and Driscoll. Finally, Heilman’s signature on the purchase agreement which recited Greene’s name under the broker’s clause is yet another indication that Heilman was aware that Greene had acted as procuring broker on the deal. Therefore, I simply cannot agree with the majority that "the record is barren of even a hint that Heilman * * * was aware of Driscoll’s dealings with Greene”.

The record in this case also supports the inference that Greene was justified in his reliance on Driscoll’s authority to manage and sell the plaza. Greene, like the ultimate purchaser Gordon, reasonably concluded that Todd Mart, Inc., was engaged in selling the property. Both the president and vice-president of that corporation were engaged in the solicitation and negotiations which led to the sale. Moreover, as mentioned earlier, meetings and negotiations regarding the sale took place at the offices of Todd Mart, Inc. Thus, it would appear that the major portion of activities leading up to the sale of the shopping plaza focused on Todd Mart, Inc., rather than on Heilman, the individual. Under these circumstances, can it be said, as a matter of law, that Greene’s reliance on Driscoll’s authority to enter into a real estate broker’s agreement was unjustified? I think not.

Given Heilman’s awareness of Driscoll’s activities and the justified, although mistaken, reliance on the part of Greene as to the true ownership of the property, the doctrine of apparent authority was properly invoked by the courts below to prevent Heilman from denying Driscoll’s authority to procure a purchaser for the shopping plaza and enter into an agreement with Greene. Heilman fully participated in the transaction and has reaped the benefits of the sale. He should not now be able to avoid payment to Greene by seeking refuge in a network of corporations and claiming that he, as an individual, was not responsible for creating the appearance that Todd Mart, Inc., was selling the property and that Driscoll, its vice-president, was authorized to contract with Greene as broker to effectuate such a sale. It should be readily seen that the doctrine of apparent authority, with its underlying theory of estoppel, specifically precludes Heilman from denying Driscoll’s authority and actions.

Furthermore, I would agree with the Appellate Division that the record discloses sufficient evidence to support the finding that Greene was the procuring cause for the sale of the shopping plaza. As mentioned earlier, the purchaser Gordon testified that Greene was the first and only real estate broker to introduce him to the plaza. Gordon also stated that his interest in the property continued to develop from the time Greene supplied him with the financial statements until he eventually purchased the property. Moreover, the record indicates that during the fall of 1974 Greene had additional conversations with both Gordon and Driscoll concerning the sale of the plaza. Therefore, because there was sufficient evidence to link Greene’s activities with the ultimate purchase by Gordon, this court is without power to disturb such an affirmed finding of causation. (See, e.g., Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 491, supra.)

Finally, I cannot agree with the majority’s dismissal of Greene’s remaining claims against Heilman. The trial court, having sustained Greene’s contract action, dismissed his second cause of action in fraud and third cause of action in conspiracy because Greene was made whole by recovering under a contract theory. (See, e.g., Simon v Noma Elec. Corp., 293 NY 171, 177.) The majority, however, sustains the dismissal of these causes of action because, in its view, the record is devoid of any evidence linking Heilman with the fraud engaged in by Driscoll or of any support for the allegation that Heilman and Driscoll conspired to deprive Greene of his broker’s commissions.

While this conclusion logically coincides with the majority’s view of the record on the issue of apparent authority, it again involves a factual determination which, under the circumstances of this case, this court is without power to make. As mentioned before, there is evidence in the record from which the trier of the fact could infer that Heilman was aware of and participated in Driscoll’s activities. Thus, the record could support a judgment against Heilman under a cause of action either in fraud or conspiracy. Therefore, as with the issue of apparent authority, a factual determination as to Greene’s claims in fraud and conspiracy is beyond this court’s power of review. (NY Const, art VI, § 3.)

Chief Judge Cooke and Judges Gabrielli, Wachtler and Meyer concur with Judge Fuchsberg; Judge Jasen dissents and votes to affirm in a separate opinion in which Judge Jones concurs.

Order reversed, etc. 
      
      . As Heilman’s brief points up, the first cause of action does not appear to be directed against Heilman per se. Specifically, nowhere is it alleged in so many words that Heilman contracted with Greene or that Driscoll or Diamond did so other than for the corporations and themselves. Nevertheless, in the contract count, the plaintiff did state specifically that he had made a demand for commissions against all the defendants, which included Heilman by name. Further, the charge that Heilman was involved in the transaction was explicit in both the second and third causes of action. Moreover, no suprise is or was claimed either at nisi prius or at the Appellate Division, and the issue passed upon in those courts, even if the pleading left the matter obscure, was fully litigated there on its merits. True, appellant’s protestations are hardly hypertechnical. And the pleading imperfections to which they are directed are not to be encouraged. Yet, the question having been raised at the Appellate Division, in light of our ever-increasing concern for substance over form, we do not disturb the exercise of discretion implicit in that court’s condonation of this irregularity (Dampskibsselskabet Torm A/S v Thomas Paper Co., 26 AD2d 347; see Diemer v Diemer, 8 NY2d 206, 212).
     
      
      . This statement preceded the following sentence: "It is understood and agreed that any broker’s commission due on the transfer of this property shall be the obligation of the seller, and the [buyer] shall not be obligated for a broker’s commission if this transaction shall fail to close for any reason whatsoever or under any other circumstances”. The two quoted sentences are the only ones on this or any related subject.
     
      
      . We note that, conceptually at least, unless and until the judgment were paid, this would not follow (1 NY Jur 2d, Actions, § 14).
     
      
      . Gordon testified that, apparently unbeknownst to either Greene or anybody connected with the center, he had visited stores located there on several occasions. However, none of these visits stimulated him to communicate with Greene, Driscoll or anyone else.
     
      
      . E.g., "efficient cause of the sale” (Sussdorff v Schmidt, 55 NY 319, 321); "predominating efficient cause” and "really effective means” (Myers v Batcheller, 177 App Div 47, 51).
     