
    Joseph Moskowitz et al., Respondents, v. George Hornberger, Appellant.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. Brokers’' commissions — When earned.
    Where brokers bring an action to recover commissions for effecting an exchange of the property of the defendant for other premises, they make out a prima facie case when they prove that, through their efforts, a valid contract was entered into by competent persons, as there is a legal presumption that persons who have executed a formal contract to convey real estate are able to perform their undertaking, and thereupon the burden is upon the defendant to prove that the title offered by the contracting parties was, for some reason, defective.
    8. Defect' in proof supplied.
    Where defendant does not rest upon á defect in the proof of the plaintiffs, pointed out by a motion for a nonsuit, and the necessary evidence is afterward supplied by either party, the objection is obviated and the case must be decided upon the entire evidence which has been presented at the time when the case was submitted for decision.
    3. Corporation not authorized to take — Cannot be attacked collaterally.
    It is not a valid objection to a deed in a chain of title, that the grantor acquired title by a devise under a will of a person who died in 1882, that the testatrix, by her will, violated the provisions of chapter 649 of the Laws of 1872, and chapter 641 of the Laws of 1881, limiting the amount of real and personal estate which a corporation, formed under chapter 319 of the Laws of 1848, may take, and that she devised to such a corporation property in excess of the amount which it might legally take and hold, as such a devise cannot be attacked collaterally and is invalid only at the suit of the state, or at the suit of heirs who would take if the devisee did not.
    4. Brokers’ commissions — Defective title of customer.
    Where brokers, employed to make an exchange of property, procure for their customer a purchaser who, himself, has good title and who is ready to make a binding contract for an exchange, the brokers are entitled to their commissions, whether or not the customer himself has good title tó his own property.
    
      5. Extra allowance made at General Term,
    Where both sides ask for the direction of a verdict, and the court orders the jury to find for the plaintiffs, exceptions to be heard in the first instance at General Term, and the General Term overrules the exceptions and orders judgment for the plaintiffs, its power ends and it cannot, without notice to or any hearing of the defendant, grant the plaintiffs an extra allowance.
    Moskowitz v. Hornberger, 19 Mise. Bep. 429, affirmed.
    Appeal by defendant from judgment of the General Term of the City Court overruling the defendant’s exceptions and directing judgment on verdict in favor of the plaintiffs.
    L. S. Goebel (E. W. S. Johnston, of counsel), for appellant.
    D. Leventritt and Harold Nathan, for respondents.
   McAdam, J.

The plaintiffs sued to recover brokerage for effecting an exchange of the defendant’s property, known as No. 62 Seventh street, for premises known as Nos. 339, 341, 343, 345 and 347 East Twelfth street, in this. city. The plaintiffs allege an employment by the defendant to act for him as brokers, and a promise to pay them $400 as compensation in case they succeeded, and that acting thereunder they did succeed in effecting the exchange.

The plaintiffs proved that they effected the exchange, so far at least that through their efforts a valid contract was entered into by competent persons to make the same upon terms and conditions agreeable to the principals, even as to details, which were carefully expressed. While this is ordinarily all a broker can do,'he must, if. employed to effect an exchange, go a step further and prove that the person procured was able as well as willing to carry out • the contract made, and that the trade fell through by reason of the inability or capriciousness of his employer to consummate it. Woolley v. Lowenstein, 83 Hun, 155; Emens v. St. John, 79 id. 99.

As was said in Barnes v. Roberts, 5 Bosw. 84: “ It is one thing to agree with a broker to pay him a stipulated sum to obtain from a third person a valid contract to make a prescribed exchange, and another thing to agree to pay a fixed sum to effect or negotiate an exchange which will vest in the employer a good title to designated lots.” Or in. the language of the court in McGavock v. Woodlief, 20 How. (U. S.) 251: “The broker must complete the sale; that is, he must find a purchaser in a situation and ready and willing to complete the purchase on the terms agreed on, before he is entitled to his commissions. Then he will be entitled to them; though the vendor refuse to go on and perfect the sale.” These cases were cited in Kalley v. Baker, 132 N. Y. 1, wherein the distinction between an employment “ to effect an exchange ” and “ to procure the execution of a contract for an exchange ” was recognized and • acted upon. _ .

The defendant' claimed that the plaintiffs were bound to prove before they rested their case that the person procured by them to make the exchange had a good, marketable title to the property he contracted to give for the defendant’s property. In a limited sense this is so; but the fact that such person executed a formal contract - to convey carried with it the legal presumption (which is. proof in the first instance) that he was able to perform his undertaking. Hart v. Hoffman, 44 How. Pr. 168. The onus was thereby shifted upon the defendant to prove that the title offered by such contracting party was for some reason defective. It is laid down as a settled principle that “ When a person is- in possession of property and is shown- entitled to the beneficial ownership thereof, the presumption is that every instrument has been executed, and everything has been done to render his title legal.” Laws. Pres. Ev. 419.

The defendant assumed the burden of attacking the title offered by the purchaser procured by the plaintiff, but failed to establish any valid objection to it.

Even if the onus ought to have been borne by the plaintiffs in the first instance, the rule is that where a defendant does not rest upon a defect in the proof of his adversary pointed out by motion for ■a nonsuit, and the necessary evidence is afterward supplied by either party, the objection is obviated, and the case must be decided upon the entire evidence in at the time of its submission for decision. Bartholomew v. Lyon, 67 Barb. 86; Tiffany v. St. John, 65 N. Y. 317; Painton v. R. R. Co., 83 id. 7; Meyers v. Cohn, 4 Misc. Rep. 185; Pollatschek v. Goodwin, 17 id. 587; Sullivan v. Brooks, 10 id. 368.

It appeared that Miller, the proposed purchaser, received title by deed from Charles Meyer, July 11, 1893; that Meyer received title by deed in September, 1892, from the St. John Baptist Fund, a religious corporation organized under the act of 1848; and that said corporation acquired title by devise under the will of Helen S. Folsom, dated July 17, 1876, and the codicil thereto made January 14, 1882. The testatrix died April 26, 1882, and at that time all corporations formed under the act of 1848 (chap. 319), as amended (Laws 1872, chap. 649; Laws 1881, chap. 641), were declared capable of taking, receiving, purchasing and holding real estate for the purposes of their corporation to an amount not exceeding the sum of $200,000 in value, and personal estate for like purposes to an amount not exceeding the sum of $200,000 in value, but the clear annual income of such real and personal estate shall not exceed the sum of $50,000.”

The, will speaks as of the time of the death of the testatrix, and the statute in force at that time operates upon and controls its validity.

The objection urged by the defendant is that the value of the property devised exceeded the statutory limitation. Ho fault is found with the will itself or the sufficiency of the devise as a testamentary disposition of the property. Hothing appears on its face to suggest or even give color to any question of illegality.

The will was admitted to probate in 1882, fifteen years ago. Ho one interested in thei estate has attacked or even questioned the disposition of the property made by the testatrix, or attempted to restrain the devisee from making transfers thereof to purchasers. The corporation took possession of the devised property in 1882, and has conveyed parts of it, and its right to make such disposition has remained unchallenged until now, when an attack is made by a purchaser from an intermediate grantee, the ground being that because certain witnesses are of opinion that the value of the devised property exceeded the statutory limit the title is defective. This collateral mode of attacking a devise, apparently legal, and at most voidable only, is without warrant in law, particularly at this late1 day.

In Church of Redemption v. Grace Church, 68 N. Y. 570, 582, it was held that to enable a person to make inquiry into an excess of accumulated property held by a corporation, he must bé in a position to claim an interest in the property, if it is adjudged that the corporation may not.

The restrictions imposed by the charter of a corporation upon the amount of property it may hold cannot be taken advantage of collaterally by private persons, but only in a direct proceeding by the state. Jones v. Habersham, 107 U. S. 174. And see National Bk. v. Matthews, 98 id. 628.

“It Is in accordance with this reasoning that a deed of real estate to a national bank, or other corporation, rendered incompetent by its charter or enabling act to hold the real estate conveyed, is not void, but voidable only at the suit of the government; for to make such conveyances void would work the greatest hardship and uncertainty of title in subsequent purchasers, and all purposes of public policy are amply subserved by holding the deed voidable at the suit of the government.” Taylor on Corp. (3d ed.), § 303. See also 3 Washburn on Real Prop. (5th ed.) 283; Bogardus v. Trinity Church, 4 Sandf. Ch. 634.

1 While our courts have held that the heirs may contest the right of the corporation (In re McGraw, 111 N. Y. 67, 99; Rich v. Tiffany, 2 App. Div. 25), it is not to be raised collaterally (Trustees v. Rich, 91 Hun, 509; affirmed, 151 N. Y. 282; Lewis v. Cook, 150 id. 163), as the devise is invalid only as to the state, or the heirs, for the latter would take if the devisee did not. See cases collated in Abb. Ann. Dig. 1889, p. 53, tit. Colleges.

The evidence does not satisfactorily, establish that the state or the heirs might have succeeded, in an attack upon the devise if either had chosen to make one, and that result, is such an improbable and remote contingency now that we cannot hold that a court of equity would not in the exercise of a sound discretion have compelled the defendant to complete the exchange (Cambrelleng v. Purten, 125 N. Y. 610), particularly as the remedy, if available, has been open for fifteen years, and those having the right have hot attempted to resort to it. If they ever supposed there was the slightest possibility of succeeding in any such claim their silence would indícate a purpose hot to assert it, and their inexcusable laches would not assist them in asserting any equitable claim for relief, especially where the rights of innocent purchasers have intervened.

The doubts cast upon the title by the defendant are more fanciful than substantial (Lynch v. Pfeiffer, 110 N. Y. 42), and we may for the' purposes of this appeal safely say that the title offered by the proposed purchaser was marketable, that is free from all reasonable doubt, and should have been accepted by the defendant. Ferry v. Sampson, 112 N. Y. 415; Moore v. Williams, 115 id. 586; Mutual Life Ins. Co. v. Woods, 121 id. 302. See also decision by Truax, J., in Hornberger v. Miller, N. Y. L. J., May 14, 1897.

The defendant having chosen to put his refusal to take upon the ground that the title of the proposed purchaser was bad when it was not, is probably liable for the brokerage without regard to whether his title was good or not.. Without putting our decision upon that ground we will consider how far the defendant’s title need be investigated.

"Upon the cross examination of one of the plaintiffs, the defendant proved and then put in evidence an agreement signed by them wherein it is provided: “ ETo commissions to be paid to us by George Homberger unless deeds to said premises pass, unless Homberger’s title should prove on examination unmarketable, in which event he is to pay the commission, to-wit: $400.” The defendant proved that no deeds passed between the parties to the exchange; so that according to his contention the right to brokerage was made to depend upon the single question whether his title proved on examination to be unmarketable.

We think the defendant became liable irrespective of the question whether he had good title or not. So long as the purchaser procured by the brokers had good title, they earned their brokerage when they produced him to the defendant, and he offered to make a binding contract for the exchange. The agreement to wait until the title deeds passed, and that no brokerage was to be paid xxnless the defendant’s title proved unmerchantable was exacted after the brokerage had been earned, and Was on that accoxmt without consideration. McComb v. Von Ellert, 7 Misc. Rep. 59. It was, therefore, immaterial whether the defendant’s title was good, bad or indifferent. If he wanted to test his title he should have done so in a, direct proceeding against the customer produced, either for specific performance or damages, where it might more properly have been passed upon.

The evidence produced by the brokers established complete, performance on their part so far as performance by them was possible.

In tHis view of the case the evidence offered tending to show that the defendant’ title was defective, the exceptions taken thereto, and the arguments advanced upon, the special agreement aforesaid ■are immaterial. The amendment conforming the pleadings to the facts proved is also immaterial. It did not prejudice the defendant, in any manner.

Upon the conclusion of the trial both sides asked for the direction of a verdict, and the court ordered the jury to find for the plaintiffs, the exceptions to be heard in the first instance at General Term. The General Term overruled the exceptions and ordered judgment for the plaintiffs.

The power of the General Term ended there. Douglas v. Haberstro, 10 Abb. N. C. 6. After obtaining the order for judgment the plaintiffs might have applied on notice at Special Term for an extra allowance, when the defendant would have been heard as to the propriety of granting such relief, and as to the amount. This is .the practice when the application is not made at the trial. Howe v. Muir, 4 HoW. Pr. 252; Saratoga & W. E. E. Co. v. McCoy, 9 id. 339. The allowance granted by the General Term having been made without notice or hearing, was unauthorized. Griggs v. Brooks, 79 Hun, 394; Toch v. Toch, 9 App. Div. 501.

As to the allowance, therefore, the judgment must be reversed, but in other respects affirmed, without costs upon this appeal.

Dalt, P. J., and Bischoff, J., concur.

Judgment reversed as to allowance; but in other respects affirmed, without costs. T  