
    Alexander J. Blumberg, Respondent, v. The Sterling Bronze Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Brokers — Compensation: Right to compensation — In general; Actions — Instructions.
    ' In an action by a broker to recover commissions for the sale of goods, it is error to charge the jury that, if the sale of the goods was the result of negotiations started by the plaintiff, he is entitled to recover; and a subsequent charge, stated in the disjunctive and as a separate and distinct principle, that to recover the plaintiff must prove that it was through his efforts and influence the sale was effected, does not cure the error.
    Appeal by defendant from a judgment in favor of the plaintiff, rendered in the City Court of the city of Hew York.
    Simpson, Werner & Cardoza, for appellant.
    Wales B. Severance, for respondent.
   Leventritt, J.

In March, 1905, the defer.dant employed the plaintiff as its agent to effect the sale of certain lighting fixtures for use in the new store of B. Altman & Co., then in process of construction. The contract of employment is represented by two letters which pa-sed between tlv parties and which read as follows:

March 28th. 1905.
“ Mr. A. J. Blumberg,
“ No. 91 Wall Street,
“ New York City.
Dear Sir.— If through your efforts and influence we obtain the order for the lighting fixtures required for the new store of B. Altanan & Co. we will agree to pay you a commission of Seven and one half (7-J) per cent on the net amount of the contract, providing same is secured on our standard prices.
“ If it should he necessary for us to reduce these prices in order to secure the work, it is understood that the amount of your commission will he proportionately reduced. Said commission to be paid to you pro rata as payments for fixtures are received from B. Altman & Company.
“ Tours truly,
“ Steeling Beonze Company.”
“ A. J. Blumbeeg,
“(B. W.)”
“ New York, March 28th, 1905.
“ Sterling Bronze Company”,
“Nos. 107—113 West 25th. Street, City:
“ Gentlemen.— Your agreement of March 28th, regarding the contract for the lighting fixtures for the new store of Messrs. B. Altman & Company, is hereby accepted.
“All prior agreements are void.
“ Yours truly,
“(A. J. B.) A. J. Blumbeeg.”

In January, 1906, the agreement was cancelled by the defendant in writing as follows:

" January 2éth, 1906. -
“ Mr. A. J. Blumbeeg,
“91 Wall Street,
“ New York:
“My dear Mr. Blumbeeg.— We have dropped the Altman fixtures proposition entirely. Mr. Grey who was attending to this matter for us is no longer in our employ. Therefore, we are doing nothing further regarding the fixtures, and thought it best to advise you, as th? agreement we had with you is now cancelled.
“ Hoping to see you some time in the near future, I am “ Yours very truly,
“ Steeling Beonze Company,
“ F. W. T. “ F. W. Tolley.”

Thereafter, negotiations were resumed between the defendant and B. Altman & Co. which resulted in the defendant being awarded the contracts. Upon a refusal of his demand for commissions, the plaintiff brought this action.

The plaintiff alleged performance of the contract of employment and tried his case upon the theory that the revocation of the agreement by the defendant was in bad faith and with the intent to deprive him of his commissions and thereby reap the benefit of his labor at a time when that labor was about to prove effectual.

Irrespective of the uncertainty of the plaintiff’s proof of performance, we deem it necessary on this appeal to refer only to an exception which brings up the propriety of a request charged by the learned trial justice.

The case was submitted to the jury upon the theory of performance' outlined in the complaint, and the jury were left to determine whether the plaintiff wat the procuring cause of the sale to Altman & Company.

At the conclusion of a charge to which no criticism could be made the court, at the request of the plaintiff, charged as follows: If the jury believe that the contracts between the defendant and B. Altman & Company were the result of negotiations started by this plaintiff the plaintiff is entitled to a verdict.”

This we think was erroneous.

It matters not that the plaintiff may have started negotiations which resulted in a sale if he was not the procuring cause of the sale. Donavan v. Weed, 182 N. Y. 43. In that case a request to charge similar to the one here under consideration was declared to be erroneous; and the principle there enunciated was founded on the decision in Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, where the court by Finch, J. say: “ If the broker has already planted the seed, which afterward grows, and they take the fruits of it, he is entitled to a commission, not because they could not revoke the authority, but because the question is whether what he has already done, whether the crop he has already sown, comes up and ripens * * *. And in such events it matters not that after his (the broker’s) failure, and the termination of his agency, what he has done proves of use to the principal. In a multitude of cases that must necessarily result. He may have introduced to each other parties who otherwise would have never met: he may have created impressions which, under later and more favorable circumstances, naturally lead to and materially assist in the consummation of a sale; he may have planted the very seeds from which -others reap the harvest; but all that gives him no claim.”

The vice in this portion of the charge was not cured by a . subsequent charge at the defendant’s request that, “ in order to recover in this action the plaintiff must prove by a preponderance of evidence that it was through his efforts and influence that the defendant obtained the order for the lighting fixtures required for the new store of B. Altman & Company.” '

At most the latter created a confusion which permitted the jury to apply conflicting principles of law at their discretion.

The fact that the portion of the charge referred to is but a part of the main request to charge is unavailing, since the objectionable paragraph is unrelated to the remainder of the request and -is clearly stated in the disjunctive as a separate and distinct principle.

It follows that the error committed by the [learned justice calls for a new trial.

Gilderseeeve and Ereawger, JJ., concur.

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