
    Harry Kalkstein, Respondent, v. Samuel Jackson, Appellant.
    Second Department,
    April 23, 1909.
    Principal and agent—broker’s action for commissions—facts raising question for jury.
    Where in a broker’s action for commissions it appears that pursuant to his employment he produced a purchaser, that the negotiations never resulted in a written contract, but that thereafter a sale was made to another person not produced by the plaintiff but alleged by him to he acting for his customer, it is error for the court to charge as a matter of law that the plaintiff had effected the sale, that question being for the jury.
    Although it was not essential that the plaintiff should have introduced the person to whom the sale was made or that the purchaser or the grantor should have known that the plaintiff was the producing cause, yet it must affirmatively appear that the purchaser was induced to apply to the owner through means employed by the broker.
    Appeal by the defendant, Samuel Jackson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Walter J. Rosenstein, for the appellant.
    
      Edward W. S. Johnston, for the respondent.
   Jenks, J.:

The defendant appeals from a judgment against him for broker’s commissions on the sale of defendant’s real estate. The plaintiff complains that the broker under his employment produced Ritter as a purchaser, who was accepted, and that the defendant thereupon entered into a contract of sale with Ritter or with Berkowitz, acting for her, or with them both, whereby the commissions were earned. The answer was a denial.

The learned court under exception gave the final instruction to the jury that the plaintiff brought a purchaser who made a contract and carried it out and that Berkowitz was “ for the purpose of brokerage, Ritter,” and added: “ The crucially grave question is whether Jackson, the defendant, was innocent of knowledge that Berkowitz, the actual signer of the contract, was doing it in the interest of himself and Ritter.” I think that the learned court went too far. thus to instruct the jury in effect that the plaintiff had been the efficient cause of this sale, instead of submitting the question to it. The evidence established the employment and the production of Ritter as a purchaser, and that there were negotiations between them looking to the execution of a written agreement. But it appeared that such an agreement was never executed. Shortly afterward Berkowitz was brought to the attention of the defendant through an outside source, and apparently on his own account and in his own name, without there being an indication of the hand of the broker in the affair, made the agreement with the defendant which resulted in a sale to Berkowitz alone. The evidence of Berkowitz is that this opportunity was brought to him by the Ritters alone; that he was put forward to act for himself and the Ritters, who were secret joint venturers with him. Those facts did not establish conclusively (and thus outside of the province of the jury) that the broker was the procuring cause of the sale to Berkowitz. Although it is not essential that the broker should have introduced Berkowitz to the defendant or even have known Berkowitz or that the defendant should have known, had it been the fact, that the broker was the producing cause of the sale to Berkowitz, yet it mnst affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker.’ ” (Metcalfe v. Gordon, 86 App. Div. 368; Sussdorff v. Schmidt, 55 N. Y. 319; Wylie v. Marine National Bank, 61 id. 415.) The mere fact that the broker had originally produced Ritter as a purchaser was not in itself enough to establish conclusively that the broker was the procuring cause of the sale to Berkowitz, under the circumstances of the case. For the jury could have found that, even though the broker thus “ planted the very seeds,” he did not establish his right to the harvest.” (Sibbald v. Bethlehem Iron Co., 83 N. Y. 383.)

I advise that the judgment and order be reversed and that a new trial be granted, costs to abide the event.

Woodward, Gaynor, Burr and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  