
    John W. Whiteley, Appellant, v. Seth Sprague Terry, Respondent.
    
      Section 640d of the Penal Code, making it a misdemeanor to sell or offer to sell in cities of the first and second class real estate without the written authority of the owner, is constitutional.
    
    
      Semble, that section 640d of the Penal Code, added by chapter 128 of the Laws of 1901, which provides that in cities of the first and second class any person who shall offer real property for sale without the written authority of the owner, is guilty of a misdemeanor, is constitutional and a reasonable exercise of the police power.
    
    Criminal laws are not necessarily unconstitutional because they bear unequally upon persons in different parts of the State.
    Appeal by the plaintiff, John W. Whiteley, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1902, setting aside the verdict of a jury in favor of the plaintiff, and granting the defendant’s motion for a new trial.
    Section 640d of the Penal Code, which is referred to in the opinion, provides as follows :
    “ In cities of the first and second class, any person who shall offer for sale any real property without the written authority of the owner of such property, or of his attorney in fact, appointed in writing, or of a person who has made a written contract for the purchase of such property with the owner thereof, shall be guilty of a misdemeanor.”
    
      Charles W. Coleman, for the appellant.
    
      John L. Hill, for the respondent.
    
      
      See, contra, Grossman v. Caminez (79 App. Div. 15).— [Rep.
    
   Patterson, J.:

The plaintiff sues as the assignee of one Anspacher, to recover commissions claimed to have been earned by his assignor as a real estate broker upon the employment of the defendant. The allegations of the complaint are that the employment was made and that Anspacher procured a purchaser for the property. The answer of the defendant denies generally those allegations and sets up as an affirmative defense that he never gave a written authority to Anspacher to sell the real property, as required by chapter 128 of the Laws of the State of New York enacted in 1901 (Penal Code, § 640d). The cause came on for trial and the plaintiff had a verdict, after which a motion was made for a new trial, which was granted, the order of the court being, that the verdict herein in favor of the plaintiff be and hereby is set aside as being contrary to law and a new trial granted.”

The trial judge appears to have granted this motion on the ground that the plaintiff was not entitled to recover, because of the provision of the act of 1901 (Penal Code, § 640d). But irrespective of that enactment, the verdict was contrary to law and -che complaint should have been dismissed upon the motion made when the plaintiff rested and which was renewed at the close of the whole proofs. There was no evidence that the defendant employed Anspacher to sell the property, nor was there evidence that he was the procuring cause of the sale. Anspacher’s own testimony disposes of the first proposition. He admits that he, by letter dated January 16, 1902, introduced himself to the defendant and made a proposition with respect to a sale of the property, with a building loan. He testifies that at that time he was acting for Mr. Wandell of Buffalo. At that point he does not claim to have been acting for or to have been employed by the defendant. Mr. Wandell seems to have dropped out of the transaction as Mr. Terry would not make the building loan. The plaintiff’s assignor then testified that he told Terry that a broker had brought to him a party who thought of buying the lot, to which Mr. Terry replied that if the party were “ all right,” he was perfectly satisfied to sell it upon certain terms. The party (the plaintiff’s assignor says) was John W. ■Stevens or the John W. Stevens Building Company, but Anspacher also testifies that he told Terry that Stevens or the Stevens Company were his (Anspaeher’s) customers. Anspacher then seems to have liad a talk with a Mr. Heilman about a sale of the property, but the proof does not show either that Terry employed Anspacher to make a sale or that Heilman was authorized by Terry to employ him. There is nothing in the evidence which justifies the conclusion that Terry either personally or through Heilman employed the plaintiff’s assignor, or that the defendant had reason to believe ■otherwise than that Anspacher was acting for other customers. Hor ■does it appear that Anspacher procured the sale to be made. The proof shows, on the contrary, that he did not. The sale was effected by one Hilton, who never heard of Anspacher in the transaction. Mr. Finn, the purchaser, never met Anspacher until a week before the execution of his contract with Terry.

The submission of the case to the jury under such circumstances was error in law. The question as to whether there is evidence to support a finding is one of law. (Healy v. Clark, 120 N. Y. 642.) If the above considerations are correct, then this order must be affirmed, without regard to the question of the constitutionality of the act of 1901.

In the second department, in Grossman v. Caminez (79 App. Div. 15), it has been decided that the law is unconstitutional. The opinion of the court proceeds upon two grounds, viz., that the act is invalid, because of the discrimination made between persons engaged in a legitimate business in different communities in the State, making it unlawful to engage in that business in cities of the first and second class, unless under certain conditions, wnile it remains lawful to do so in other parts of the State without such conditions and that it interferes unreasonably with the liberty of the citizen. The learned court says that it has been unable to find any case which holds that the Legislature can make an act innocent and harmless in itself, a necessary or commonly used instrumentality of carrying on the ordinary vocations of life, a crime in one portion of the State and not in another. But that is exactly what was held in People v. Havnor (149 N. Y. 195). By the act of 1895 (Chap. 823) it was made a misdemeanor for any person to work at the trade of a barber on Sunday, except in the city of New York and at Sara-toga Springs, where business might be carried on until one o’clock in the afternoon of Sunday, and that was held to be a valid exercise of police legislation and worked no deprivation of liberty or property, within the meaning of the Constitution (Art. 1, § 6). Criminal laws are not necessarily unconstitutional if they bear unequally upon persons in different parts of the State. The same offense punishable under a general law may be differently punished in different parts of the State. (Williams v. People, 24 N. Y. 405; Matter of Bayard, 25 Hun, 546.)

We have no criticisms to make upon the general views expressed in the opinion of the court in the Grossman case with respect to the police power, its extent, its purpose or its circumscriptions; but that the Legislature may control and regulate, for the benefit of the public, methods by which business shall be transacted cannot be disputed. It is within its legitimate power to regulate charges for elevating grain. (People v. Budd, 117 N. Y. 1.) It may regulate the height of buildings in the city. (People ex rel. Kemp v. D'Oench, 111 id. 359.) It may require the introduction of water in a building. (Health Department v. Rector, etc., 145 id. 32.) It may prevent the exhibition of children in theatres. (People v. Ewer, 141 id. 129.) It may prevent trade in marked bottles. (People v. Cannon, 139 id. 32.) And because the act interferes with trade it is not necessarily unconstitutional. (Id.) The police power extends to legislation having for its object the promotion of the health, the comfort, the safety and the welfare of society. Under it the conduct of an individual and the use of property may be regulated so as to interfere to some extent with the freedom of the one and the enjoyment of the other. (Matter of Jacobs, 98 N. Y. 108.) But under the exercise of the police power, the act must have reference to the comfort, the safety or the welfare of society and it must not conflict with the Constitution. The law will not allow the rights of property to be invaded under the guise of protection when it is manifest such is not the object and purpose of the regulation. “ Courts must be able to see upon a perusal of the enactment that there is some fair, just and reasonable connection between it and the ends above mentioned. Unless such relation exist, the enactment cannot be upheld as an exercise of the police power.” (People v. Gillson, 109 N. Y. 401.) In the present case the statute relates to rights of owners of real estate in certain designated parts of the State. It is a statute for the protection of such owners, to prevent unwarranted interference with their property, their subjection to annoyance and to fraudulent claims and the expense of resisting such claims, and to prevent the unauthorized assumption of agency by real estate brokers and to provide for evidence of employment of such a character as will prevent false swearing. While these purposes are not recited in the act, it is apparent that they will be accomplished by it, and if it is competent for the Legislature to make the act operative in one part of the State and not in another, there is an obvious public benefit to be derived from it. It does not interfere with the transaction of a lawful pursuit, except in so far as requiring evidence of a certain character can be said to interfere, but that does not constitute an invasion of liberty any more than the requirements of law that contracts of a certain character shall not be enforced unless they are in writing, or that auctioneers and others must keep records of a certain kind in the transaction of their business. The act in no way infringes any right of property, nor does it affect real estate brokers in the way in which ticket brokers were affected by the statute condemned in People ex rel. Tyroler v. Warden of Prison (157 N. Y. 116). There the act merely turned over to transportation companies the selection of agents for the sale of passage tickets. The business of buying and selling tickets continued to be a legitimate one, but to all citizens other than those who might be selected by the transportation companies the right to sell tickets was denied and an actual sale of them constituted a crime. It is admitted in that case that there might be a situation such as would justify the placing of some restriction-upon persons engaged in selling passage tickets and prescribing penalties by way of fine or imprisonment for those who should break over such restrictions and the excise legislation is referred to as an illustration. In that case the railroad ticket brokers were dealing with their own property which they had bought and paid for. Here, there is nothing in the statute which interferes with the real estate broker conducting his business legitimately. He may negotiate contracts for real estate when he is authorized in writing to do so. We agree with what is said by the court in the Grossman Case (supra), that “We 'are at liberty to consider the established usages, customs and traditions of the people, and to have in view the promotion of their comfort and the preservation of the public peace and good order.” We discover in this statute that which the learned court in the Grossman case failed to find, that it is intended to correct the evil which has time and time again been exemplified in the courts, of the oppressive litigation forced upon real estate owners by reason of unfounded claims made by real estate brokers that they had been employed to negotiate sales of property for such owners. The real estate broker is not as much controlled or trammeled in his business as was the barber in the Havnor Case (supra), who, by exercising his trade in one part of the State on an interdicted day, becomes a criminal, while in another part of the State he may work with impunity on that day.

If, as we apprehend, this statute was within the power of the Legislature to enact, although operating as it does unequally in different parts of the State, we can see no reason why obedience to it cannot be compelled by making it a misdemeanor to violate it. If the State had power to issue the command, and those affected by the statute are required to obey, it was within the competency of the Legislature, if it saw fit, to add' the sanction of punishment for disobedience.

We áre of opinion that the act is constitutional and a reasonable exercise of police power.

The order appealed from must be affirmed, with costs.

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

Order affirmed, with costs.  