
    Benjamin Channing Miller, Respondent, v. Waclark Realty Company, Appellant.
    First Department,
    June 24, 1910.
    Principal and agent — real estate broker’s commissions,
    A judgment in favor of a real estate broker for commissions earned in procuring a purchaser for certain real property will be reversed where the plaintiff failed to prove that he was ever employed by the defendant, as a broker to sell its property and it appears that he did nothing in the interest.of or for the benefit of the defendant; that the property was not put into his hands, for sale, but that he made the offers and represented the purchasers whom he referred to as his clients; The basis of a claim for commissions is the employment.
    Appeal by the defendant, Waclark Realty Company, from a. judgment of the' Supreme Court in favor of the plaintiff, entered in the; office of the clerk of the county of Hew York on the 11th day of January, 1910, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 10th day of January, 1910, denying the defendant’s motion for.a new trial made upon the. minutes,'
    
      Alfred B. Cruikshank of counsel [Atwater & Cruikshank, attorneys], for the appellant.
    
      Clarence De Witt Rogers of counsel [Holden & Rogers, attorneys], for the respondent.
   Clarke, J.:

. The defendant corporation is a mere holding company for the benefit of W. A,. Clark, who owns practically all of the stock - and, who incorporated it for the purpose of taking title to property purchased by him. It has never done any business or been engaged in dealing in real estate. •' It owned a certain plot of unimproved land on the northwest corner of Park avenue and Seventy-sixth street, borough of Manhattan, about 55 feet by 102 feet in dimensions. This property had never been offered for sale in any manner, either by advertisement, by signs on the property, or by being put upon the books of any real estate broker. The plaintiff, who had been a personal acquaintance, of Senator Clark for some years, was employed in a real estate broker’s office. He had a fellow-clerk . by the name of Duffie. • "

Duffie testified that he knew a Miss Brown and a Mrs. Durant. “ They employed me to get the building loan and I was to be paid a commission for that, if I got it. That scheme was all gone into before I made the offer for this property. These ladies then got up or prepared this scheme to. improve this property with a building loan, and came to me and I then looked about for the owner of the property. I talked it over with them, I advised them on it., I then looked about for the owner and I mentioned it to Miller here. He told me- that he knew Senator Clark. Then I stated that I would divide the commission with him if he could get it.. I told him to ■ offer $135,000 for this property. He told me he could not get it for that. Mr.' Miller told me if I could get them to pay $150,000, Senator Clark would' take it.”

Thé plaintiff testified: Duffie probably asked me if Tcould buy ■ that, piece of property, or' get a price on that piece of property. He was aware that I was acquainted with Senator Clark and that is how he came to ask me about it. He told me that Clark owned the property and knowing 1 was well acquainted with him, he asked me if I could buy it. * * * Duffie and I were interested in this transaction together in the way that he asked me to get a price on that property, and that he had a client that would like to buy it. * * Duffie is interested in this case; He is to get part of the commission which I recover here and he is in court to be one of my witnesses. * * * Mr. Duffie said to- me at the beginning that he would divide the commissions with me.”

v An offer was made for the property for $135,000, which vtas positively refused; Subsequently the price wasinereased to $150,000,-which was accepted and a paper was executed- as follows: “ The "Waclark Realty Company, in consideration of the sum of Two thousand dollars ($2,000) to it in hand paid, receipt whereof is hereby acknowledged, hereby agrees with Helen S. Harman Brown and Janet S. Durant, that it will, on or before the 20th day of June, 1908, if required, enter into a contract for the sale of the real property at the northwest corner of Park Avenue and Seventy-sixth street, in the Borough of Manhattan, City of Hew York, being fifty-five (55) feet front on 76th street and one hundred and two feet and two inches on Park Avenue, be the said dimensions more or less, which contract shall be in the usual form for the sale of said real property, within thirty days from its date, to said Miss Brown and Mrs. Durant, or such persons as they shall direct, by a full covenant and warranty deed for the purchase price of $150,000, the $2,000, the consideration of this option, to be applied upon such purchase price, if the option be exercised.”

On the day the option expired a written contract of sale was entered into with one Harold Carpen, conceded to be a dummy, and who had no intention of completing the purchase, and the purchase never was completed and no moneys were ever paid, except the $2,000, upon the execution of the option. Based upon the execution of the written contract to sell, the plaintiff brings this suit for $1,500, as one per cent commissions upon the agreed price, and has obtained a verdict.

We are of the opinion that said verdict is not supported by the evidence and is against the weight thereof, in that the plaintiff has failed to prove that he was ever employed by the defendant as a broker to sell its property. His negotiations were entirely those of a purchaser. He did nothing in the interest of, or for, the benefit of the defendant; the property was never put into his hands for sale; he made the offers, and he represented people whom he continually spoke of as his clients, The language of Mr. Justice Hirsohberg in Haynes v. Fraser (76 App. Div. 627) is appropriate : “ The defendant certainly did not offer the property in question for sale in the first instance, either through the plaintiff’s agency or otherwise. On the contrary, it is beyond dispute that the plaintiff’s connection with the transaction was chiefly, if not wholly, in consequence of the fact that he had a customer who desired to buy, and that it ivas' his efforts in his customer’s behalf, which finally resulted in inducing the defendant.-to sell ata mutually satisfactory price. The plaintiff, although known to the defendant to be a real estate broker, was known to him only as the agent of • a prospective purchaser of the defendant’s property, and his activity as an agent was developed wholly in buying the property and not in selling it.” In Kaake v. Griswold (104 App. Div. 137) it is said: "In brief, the brokers, so far as the projected transfer of the lease was concerned, were acting throughout the transaction as the agents of the intending vendee rather than as the agents of the intending vendor.”

In 'the evidence both the plaintiff and Duffie continually talk of these ladies as their clients; the initiative came from them;-they were working together; they agreed to divide their commissions. When the option was about to expire they procured a dummy to enter into the. written contract for the purpose of saving their claim. They were practically partner» in the enterprise; they did nothing for the benefit of the defendant, made no investigation as to -the responsibility of the proposed purchasers, and their -efforts seemed to be confined' to making a technical case for a claim for commission.' The basis for a claim for commissions is the employment'. This essential element in the case is not supported by the. evidence.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., TVIóLaugh-lin, Scott and- Dowling,- JJ., concurred.

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