Baker v. Thomas

11 Misc. 112, 31 N.Y.S. 993, 65 N.Y. St. Rep. 116

• Court: City of New York Municipal Court
• Decided: January 15, 1895
• Status: Published

Opinion

Conlan, J.

This action was brought to récóvér commissions as broker on a sale of real estate. The complaint alleges and the answer admits that one William H. Simonson Was the authorized agent of the defendant in the matter of effecting a sale of certain real property of defendant known and designated as Ho. 52 West One Hundred and Fifth street in the city of Hew York..

As such agent, authority to employ a broker may be-presumed.

The evidence shows that the plaintiff was a real estate broker, and that early in October, 1893, he received a communication in the following .words :

“Hew York, October Qth, 1898.

“ Dear Sir.—We are in receipt of yours of the 5th, inclosing check for $217.91; the price .for 50 and 52 West 105th street is $27,000 for the single house; mortgage, $-15,000= at 5f0\ double house, $40,000; mortgage, $30,000 at 5$. We will entertain exchange for the property, but there must be cash' with any trade we may make. If you have an offer let us know.

“Yours truly,

“ T. H. Simonson & Son.”

It further appeared that about one week after the receipt of said communication, at the instance of the plaintiff, W. H, Simonson and one Mr. Elahive (who subsequently became the purchaser of the premises in question) met at the office of the plaintiff, where the price and terms of sale were talked over generally, hut no agreement was^ reached. The plaintiff testifies to a second meeting about a week later at his office, where Simonson offered the property for $38,000; that Elahive said he would consider the offer and let the plaintiff or Simonson know. The testimony as to the second meeting and what took place is denied by Simonson and Elahive.

It also appears that in the latter part of December following Elahive purchased the property in question at the same price and on the same terms offered by Simonson in the office of. the plaintiff. At the time of the purchase Elahive had not reported to the plaintiff his acceptance or rejection of the offer submitted, nor had plaintiff’s agency been revoked or terminated by Simonson.

The rule is that before, a broker can recover his commissions he is bound to prove that he found a purchaser, and produced‘him to his principal, ready and willing to purchase the real estate upon his terms. Gerding v. Haskin, 141 N. Y. 514.

The broker need not be personally present during the negotiations nor when they are actually concluded; he may just as effectually produce and create the agreement though absent when it was completed and taking no part in its final details. Glentworth v. Luther, 21 Barb. 141, approved in 83 N. Y. 387.

The fact, therefore, that the bargain was concluded between the same parties and on the same terms, as originally proposed in the office of the plaintiff which brought them together, and within about sixty days from the introduction, was for .the jury as bearing directly upon the question of performance by plaintiff as broker within the rules laid down.

The trial judge submitted two questions to the jury: First, employment of the plaintiff, and, secondly, whether the plaihtiff was instrumental in bringing the minds of the parties .together on a bargain.

The jury found for the plaintiff, and we think there is sufficient evidence to sustain the verdict; no errors of law were committed on the trial.

The judgment should be affirmed.

Fitzsimons, J., concurs.

Judgment affirmed.