
    Frederick P. Fox, Zoltan Friedman and James Cairns Fox, Respondents, v. Cammeyer, Respondent, and Spear & Company, Interpleaded as Defendant in Place and Stead of Cammeyer, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1916.)
    Interpleader — adverse claimant — appeal — admission of liability — brokers.
    Where the evidence in an action to recover brokers’ commissions for the leasing of a loft presents a question of fact as to which of the brokers, the plaintiff or one who had been interpleaded as a defendant, was the procuring cause of the leasing, the direction of the verdict in favor of plaintiff is reversible error even though a verdict for the defendant who was interpleaded might have to be set aside as against the weight of evidence, there still being some evidence to support said defendant’s contention that it was entitled to the commission.
    The lessor having admitted its liability' to either one of the brokers was properly released upon payment of the money into court and interpleading the adverse claimant.
    Appeal by the defendant Spear & Company, from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, directing the payment of the sum of $240 deposited with the clerk of the Municipal Court to the plaintiffs, and against the defendant Spear & Company, after a trial by the court and a jury and from an order granting interpleader.
    David L. Podell, for appellant, Spear & Co.
    Emile Pincus, for Cammeyer, respondent.
    Harry Baer, for respondents.
   Finch, J.

This is an action to recover real estate brokers ’ commissions for the leasing of a loft, and was originally brought against respondent Cammeyer, a corporation, which owned or controlled the loft out of the leasing of a part of which this action has arisen. The appellant, Spear & Company, had also demanded commissions from Cammeyer for the same leasing. Cammeyer admitted its liability to either one of the claimants, and upon its motion and payment into court of the amount claimed, to wit, $240, with interest, appellant was interpleaded in its place, and the action was continued between the two brokers to determine their rights to the money deposited.

Cammeyer had employed both plaintiffs and the appellant, as well as numerous other brokers, to procure a tenant. The appellant, however, strongly urges that Cammeyer did not employ the plaintiffs, but the evidence is the other way.

About May 19, ,1914, appellant, through its representative, Corrigan, brought the premises to the attention of Herman Moritz and Excelsior Shrinking Company. Corrigan introduced some of the officers of the latter company to a Dr. Hart, who was in charge of the matter for the Cammeyer corporation. The proposed lessees liked the loft and there was mention made of $5,000 for the loft as it stood, and $6,000 if live steam could be supplied, but it is extremely doubtful from the evidence whether an actual offer was made, because it developed that the loft would be useless to the lessees unless live steam could be furnished, and the Cammeyer corporation was unable to furnish such live steam. Corrigan thereupon started an investigation to devise some means of supplying the steam.

Thereafter, some time in the middle of June, 1914, Herman Moritz, the president of the Herman Moritz and Excelsior Shrinking Company, met Denzer, a representative of the plaintiffs, in Fifth avenue and said to Denzer that he liked the Cammeyer loft, and wished that something could be done about the live steam. Denzer thereupon saw Dr. Hart and Herman Moritz and.the other officers of the Herman Moritz and Excelsior Shrinking Company, and set out to solve the problem of furnishing live steam. He- obtained an engineer named Cuthbertson, who recommended a boiler man, Baisler, and the engineer and the boiler man went to the Moritz Company and also to Dr. Hart and proposed to install an adequate boiler for $750. In the meantime Corrigan had been working on a machine called thé Gould Booster, which did not prove satisfactory. Whether Corrigan then went to a boiler man or whether he learned from Dr. Hart that he was considering a boiler man, is in dispute, but it does appear that Corrigan obtained an estimate from an installer of boilers by the name of Jacobson, but Dr. Hart and the proposed lessee preferred the estimate submitted by the engineers Cuthbertson. and Haisler to that of Jacobson, because the former had successfully installed the same sort of boiler for a concern that was much larger than the proposed lessee. The testimony of Denzer is that after the estimates were in Dr. Hart wanted $6,500 for the loft including live steam. The proposed lessees, on the other hand, were only willing to .give $5,500. Denzer finally got an offer from Dr. Hart, dropping down to $6,250 and from the proposed lessees coming up to $5,750. Denzer thereupon got the Cammeyer corporation down to $6,000 and arranged a meeting between the Moritz Company and the Cammeyer corporation, and the parties finally agreed on $6,000 and signed the lease, the Cammeyer corporation also making an allowance to the proposed lessees of $600 for a new engine, it having transpired during the course of the negotiations that the proposed lessees could not use their old engine unless they were able to put a plunger through the floor into the loft below. Dr. Hart asked Denzer to take this matter up with the tenant of the floor below, but the tenant would not allow this opening unless he was paid for it, and Denzer solved this problem by getting the Cammeyer corporation to allow the proposed lessees $600 towards a new engine which would cost $800.

A real estate broker acting under such employment as appears in this case becomes entitled to a commission only when he is the procuring cause of the sale or lease which he has been engaged to negotiate. Sibbald v. Bethlehem I. Co., 83 N. Y. 382; Meyer v. Improved P. H. Co., 137 App. Div. 691; Backer v. Batkowsky, 137 id. 559; Dardonville v. Smith, 133 id. 234. From all the circumstances óf this case it was clearly a question of fact as to which of the brokers, the plaintiffs or the appellant, was the procuring cause. The trial was before a jury, but the court refused to submit to the jury any questions, though duly requested by the appellant, and the court directed a verdict for the plaintiffs. This was reversible error, for though a verdict for the defendant Spear & Company might have to be set aside as against the weight of evidence, there was still some evidence to support the appellant’s contention, and a verdict should not be directed in that event, even though a contrary verdict might have to be set aside as against the weight of evidence. McDonald v. Metropolitan St. R. Co., 167 N. Y. 66; Matter of Case, 214 id. 199.

Appellant also appeals from the order of inter-pleader and contends that it had the right to recover commission from the lessor regardless of plaintiffs’ right to commission. It is conceded in the appellant’s brief that in the ordinary case of rival brokers claiming a commission interpleader is proper, but it is sought to distinguish the case at bar on the ground that the lessor, by its conduct, left itself open to liability to both rival brokers. The facts, however, do not support this contention. The lessor in the ordinary way submitted the premises to the several brokers for rental, and they were in no way responsible for the fact that two brokers undertook negotiations with the same prospective lessee. Each of the two brokers knew that the other was working on the same prospective tenant, and there was nothing in the lessor’s conduct to render it liable for commissions to both brokers. Appellant’s representative, Corrigan, testifies that shortly before the deal was closed the lessor’s representative told him, “Ton don’t have to worry; we are taking this matter up direct with the prospective lessee, and we will do what we can do with it.” Assuming this to be true it cannot be construed as a promise to pay appellant in any event, and it in no way alters the obligations of the lessor. Appellant continued to make estimates to bring about, a completion of the transaction, according to its own evidence, and if its efforts were the procuring cause of the lease it is entitled to the commission, otherwise it is not. The lessor admitted its liability to either one of the brokers, and was properly released upon the payment of the money into court and interpleading the adverse claimant. Dardonville v. Smith, supra; Trembley v. Marshall, 118 App. Div. 839; Rasines v. Ives, 85 id. 483; Rogers v. Picken Realty Co., 55 Misc. Rep. 199.

The judgment must be reversed and a new trial granted, with thirty dollars costs to the appellant to abide the event, and order granting interpleader affirmed.

Lehman and Bijur, JJ., concur.

Judgment reversed and new trial granted, with thirty dollars costs to appellant to abide event, and order of interpleader aErmed.  