
    J. Fred Halterman, Respondent, v. Lewis Leining, Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    What evidence insufficient to show that sale of real property resulted from plaintiff’s employment as a broker.
    Plaintiff was employed as a broker to sell defendant’s house. He published advertisements and also wrote letters to the person who subsequently became the purchaser. Plaintiff never saw the purchaser, nor received answers to his letters, nor did he introduce the purchaser to defendant. Though he testified that he wrote defendant a letter that the purchaser was one of the probable purchasers, he intercepted the letter at defendant’s house and defendant never saw it.
    Held, such testimony insufficient to overcome the purchaser’s testimony that he never received the letters from the plaintiff; that the effectiveness of the broker’s instrumentality in bringing about the sale must affirmatively appear; that the cause of action was not proven by the weight of evidence.
    
      Appeal by the defendant from a judgment rendered by the justice, of the Municipal Court of the city of New York, tenth district, borough of Manhattan, in favor of the plaintiff. Action for broker’s commissions upon the sale of real estate.
    Davis & Williams, for appellant.
    George M. S. Schulz, for respondent.
   Bischoff, J.

The plaintiff’s employment as a broker to effect a sale of the defendant’s property was conceded, and the question which this appeal presents is whether the finding of the justice that the sale resulted from the plaintiff’s efforts as the procuring cause, has sufficient support in the evidence.

In our opinion the cause of action was not proven by the weight of the evidence, and a new trial should be had in furtherance of substantial justice.

It appears that after the plaintiff was employed to sell the defendant’s house, he caused certain advertisements to be inserted in the newspapers and wrote some letters to Mr. Diederich, the party who subsequently entered into a contract to purchase the premises, plaintiff’s attention having been attracted by this person’s advertisement of himself as an intending purchaser of property of this character. The plaintiff never saw Mr.-Diederich and received no replies to his letters, nor is there proof that he in any way appraised the defendant of the fact that Mr. Diederich was a person deemed to be introduced for the latter through his (plaintiff’s) efforts. It is true that the plaintiff wrote a letter to the defendant in which, according to his testimony, he named Mr. Diederich as one of the possible purchasers whom he was endeavoring to secure, but this letter the plaintiff admits having opened himself at the defendant’s house in the latter’s absence, but in the presence of his wife, whose authority to consent to such a course was in no way made to appear. What became of the letter thereafter is something as to which the record is not clear, but the defendant denies having received it, and there is no presumption that he did in view of the plaintiff’s interference with its transmission in the ordinary course. The plaintiff’s case depends upon the strength of an inference sought to be drawn that Mr. Diederich, the purchaser, was led by the plaintiff’s letter to come into communication with the defendant, and that the resulting contract of sale was due to the plaintiff’s efforts. This inference, however, is wholly opposed to credible and uncontradicted testimony, Mr. Diederich having testified that he did not recall ever receiving any letters from the plaintiff regarding the property, and that he first became advised of the fact that it was for sale through information given him by the janitor. The fact that this purchaser was an interested witness by reason of his engagement with the seller to pay any broker commissions, if due, certainly cannot be taken as ground for wholly discrediting him where his testimony is not opposed to any other proof, or the probabilities of the case, and yet the resulting judgment for the plaintiff must have proceeded upon the arbitrary rejection of his testimony and the acceptance of an inference that because the plaintiff wrote to the purchaser, notwithstanding that no correspondence followed the act of writing and sending the letter caused the buyer and seller to come together. Where, as in this case, the broker is not acquainted with the purchaser and did not introduce the latter to the seller, the effectiveness of the broker’s instrumentality in bringing about the sale must affirmatively appear if commissions are to be. recovered (Sussdorff v. Schmidt, 55 N. Y. 319, 322), and in our view the facts of this case in no way meet this test.

The judgment is, therefore, reversed, and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Fitzgerald, J., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.  