
    WEINBERG v. STEEL.
    (Supreme Court, Appellate Term, First Department.
    April 14, 1914.)
    Pbincipai. and Agent (§ 23)—Existence of Agency—Weight of Evidence.
    In an action by a person not a broker by occupation to recover commissions for procuring a tenant, in which defendant denied that plaintiff was employed to procure a. tenant, a verdict for plaintiff held contrary to the weight of the evidence.
    [Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.]
    Seabury, J., dissenting.
    Appeal from City Court of New York, Trial Term.
    Action by Philip Weinberg against Samuel W. Steel. From a judgment for plaintiff, and an order denying a motion to set aside the verdict,- and for a new trial, defendant appeals.
    Reversed, and new trial ordered.
    Argued March term, 1914, before SEABURY, LEHMAN, and BI-JUR, JJ. •
    House, Grossman & Vorhaus, of New York City (Herman Joseph, of New York City, of counsel), for appellant.
    Levy & Unger, of New York City (Henry W. Unger, of New York City, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BIJUR, J.

Practically the only question raised on this appeal is whether or not the verdict is against the weight of evidence. At the time the action was brought, the plaintiff was engaged in the millinery business, and the defendant was engaged in the millinery and ladies’ and children’s outfitting business, both in the same neighborhood. Plaintiff’s brother was in charge of the defendant’s millinery department, and the plaintiff had a half interest in his brother’s connection with the defendant. At that time the defendant was a one-third owner of No. 46 West Fourteenth street which had suddenly become vacant owing to the bankruptcy of the tenants. The relations between the plaintiff and the defendant were friendly business relations.

In this situation plaintiff testifies that the defendant had sent him-an urgent message and agreed to pay him a commission if he could effect a lease of No. 46 West Fourteenth street for over $18,000. The defendant, at that time, had a five days’ option on the entire premises from the co-owners of the premises. Five days later the premises were leased to Morrison Bros., and there is no doubt but that plaintiff was the procuring, cause of this lease. The defendant, on the other hand, testified that, after having obtained an option on the premises from his co-owners, he sent for the plaintiff and took up the question of their forming a partnership and leasing the premises. The plaintiff stated that he did not desire to do this, as he wanted to consider some larger place for such a partnership venture, but said that he had some friends who might be interested and that it would be a great favor to him if the defendant would rent the premises to these friends.

On plaintiff’s cross-examination, after he had denied that he ever had any serious intention of entering into a partnership with the defendant, it was brought out that lengthy partnership papers were prepared, and had been examined and annotated by him, and that he had actually gone so far as to put in a bid on a building for the partnership and be accepted as a tenant—from which he subsequently “backed out.” It was further developed that, on the opening of the next millinery season after the signing of the lease of the premises in suit by Morrison Bros., he took a department in their store. Plaintiff’s explanation of this disclosure was merely that he continued to talk to the defendant about a partnership in order to remain on amicable terms with him until he had collected his commissions in the present case.

It seems to me. inherently improbable that one millinery merchant should send for another and ask him to procure a tenant of real estate. Had plaintiff been a broker, the situation would be different. Moreover, plaintiff’s interest in acting as the procuring cause is explained by the fact that he ultimately obtained a department in the tenants’ (Morrison Brothers’) establishment. The business relationships and the continued negotiations between the plaintiff and the defendant are not such that the relationship of principal and broker would nominally be predicated upon them, and, in face of plaintiff’s admitted inaccuracies and self-contradictions on this vital subject, I feel that the verdict must be set aside as against the weight of the evidence.

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

LEHMAN, J., concurs. SEABURY, J., dissents.  