
    Barnet Shapiro, Appellant, v. Barnet Shapiro, Defendant, Impleaded with Samuel Leder and Zallel Zellermeyer, Respondents, and Marcus Michel and Walter T. Scott, Appellants.
    Second Department,
    March 15, 1907.
    Principal and. agent — claims by various brokers to commissions.
    A firm of real estate brokers, L. & Z., called the attention of a firm, M. & S., to real estate owned by one Barnet Shapiro. M. & S. in attempting to call Shapiro on the telephone were put into communication with a broker also named Barnet Shapiro, who replied that he knew about the houses and made an appointment with M. & S. to bring them and the real owner Shapiro into personal communication. The owner finally sold to M. & S., who first informed the owner that they were purchasers and not brokers, hut at the time of the sale admitted that they were brokers representing one B. to whom the lands were sold. The owner being beset by the claims of the three brokers for commissions paid the amount into court. - On the issue as to which of the brokers was entitled to the commission,
    
      Held, that it was not error to exclude the claim of the broker Shapiro, for it did not appear that the buyer B. was induced by him to apply to the seller;
    That it was error to exclude the claim of the brokers M.' & S. on the theory that they were not employed as agents prior to making the sale to B., such proof not being essential;
    That judgment awarding the commissions to L. & Z. should be reversed, and a new trial granted.
    Appeal by the plaintiff, Barnet Shapiro, and by the defendants, Marcus Michel and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn,-in favor, of certain of the defendants rendered on the 3d day of February, 1906.
    
      Jacob W. Kahn, for the plaintiff, appellant.
    
      G. W. Wilson, Jr., for the defendants, appellants.
    
      Samuel Ohugerman, for the. respondents;
   Jenks, J.:

Barnet. Shapiro owned houses which were-for sale. Leder, of /the brokerage firm of Leder & Zellerrneyer, called the houses and the price to the attention of Michel, of the firm of Michel & Scott. Michel made a memorandum, including the owner’s name, and went to look at the houses. Some months after, Michel & Scott attempting to call the owner, Barnet Shapiro, to the. telephone called up another Barnet Shapiro, a broker, who truthfully answered that he was “ Mr. Shapiro ” who said- that he knew about the houses and who finally made an appointment to bring Michel & Scott and the owner Shapiro into personal communication. The owner Shapiro finally agreed to sell the premises to Michel & Scott, who told the owner that they were purchasers and not brokers. When the time of closing the contract came, Michel & Scott admitted to the owner that they represented Busch, whose name they then signed to the contract, giving their own check' on account of the purchase. The premises were thereafter conveyed to Busch. The broker Shapiro then sued the owner Shapiro for commissions. The owner beset also by the claims of Leder & Zellerrneyer and of Michel & Scott, paid the amount of the commissions into the court and was relieved by order of interpleader so - that the question litigated was the contention of these three brokers. The Municipal Court gave judgment for Leder & Zellerrneyer.

Upon the record I cannot say that the court erred in excluding the claim of Barnet Shapiro, for it does -not appear that the buyer was induced by him to apply to the seller. (Metcalfe v. Gordon, 86 App. Div. 368, 370, 371, and cases cited.) If the buyer- was Busch there is not the slightest connection shown. If the buyers were in fact Michel & Scott they were in possession of the particulars, knew the name of the owner and. were actually seeking him when the accident of name and surname permitted the broker Shapiro to get wind of the project and to proffer his services which were really nothing more than to secure what direct telephonic communication might have brought to pass if the right Shapiro had been found under the wrong Shapiro’s telephone number. The Municipal Court excluded the claim of Michel & Scott because they were not employed as agents prior to the making of the contract of sale to Busch. I do not think that proof of such employment was essential. If Michel & Scott before the contract was made out to Busch revealed that he was their principal and they were after all but the brokers, “ a conscious appropriation ” of their labors as brokers or indeed' a “ mere acceptance ” of such labors-might suffice to establish the relationship of broker in the sale. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378.) The difficulty with holding the judgment in favor of Leder & Zellermeyer is that they did not produce Busch, the purchaser. It is true that they gave information to Michel & Scott, but Michel & Scott produced Busch, and if Busch was the purchaser Leder & Zellermeyer did not earn their commissions. (Sibbald v. Bethlehem Iron Co., supra ; Colwell v. Tompkins, 6 App. Div. 93 ; affd., 158 N. Y. 690.) The strongest aspect of the case for Leder & Zellermeyer is that Michel & Scott were the real purchasers and that Busch was but a dummy. But suppose this were the fact, the evidence is not sufficient to sustain their'claim under the rules. of the cases last cited. If such were the case and they could go further to show that they produced the real purchaser, that the sale to Busch was a device to avoid the payment of commissions, or that the owner capriciously changed his mind after Michel & Scott had been produced as a fit purchaser, then quite another question would be presented. (Sibbald v. Bethlehem Iron Co., supra.)

I recommend that the judgment be reversed and that a new trial be ordered, costs to abide the event.

IllRSCHBERG, P. J., IIoOKER, GrAYNOR and BlOH, J.I., COnCUlTed.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  