Birnbaum v. Unger

135 N.Y.S. 1, 1912 N.Y. App. Div. LEXIS 11892

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 9, 1912
• Status: Published

Opinion

GERARD, J.

[ 1 ] Plaintiff claimed that he and his assignor, Samuel Seiniger & Co., were employed by the defendant to procure a loan of $35,000 on certain real property owned by defendant. Plaintiff sued upon an alleged oral contract, claiming that a paper which was admitted in evidence, and which was unsigned, was but a “tentative agreement,” although as to this paper Seiniger, one of the plaintiff’s assignors, testified that:

“This paper contains the terms on which I regarded myself as employed by this defendant.”

This paper was as follows:

“New York, February 8, 1910.

“Messrs. Samuel Seiniger & Co.—Dear Sirs: I hereby employ you as brokers to procure a loan of $35,000 at 5% for five years on Nos. 295-297 Seventh street, secured by my bond and a first mortgage on the said property. I agree to pay you for your services as brokers $1,073 to cover, which shall include your fees as brokers, attorney’s fees, policy of title insurance, mortgage tax, drawing and recording the mortgage. It is understood that unless a written acceptance be given in writing from Albert Francis Hagar, attorney, No. 60 Wall street,' within one day from even date, said acceptance to be delivered to me or my attorney, Mr. Josephson, then this agreement shall be void.”

Neither plaintiff nor Seiniger & Co. ever procured an acceptance in writing from Hagar.

[2] ' Second. There was no evidence of the acceptance of a person able, ready, and willing to make the loan. Hagar testified that he was ready, able, and willing to make the loan, but on cross-examination testified that the fund was not in his possession; that his client would simply send him a check; that the money was not in his hands. This evidence was insufficient. Before a broker can recover in an action of this nature, he must' show that he had procured a person able, ready, and willing to make the loan. Holliday v. Roxbury Distilling Company, 130 App. Div. 654, 115 N. Y. Supp; 383.

[3] Third. Mr. Josephson, defendant’s attorney, called as - a witness, was asked to give a conversation had by him with plaintiff. This was objected to, and the court asked:

“What is the purpose of this?”

And the answer was given:

“The Witness: This conversation is for the purpose of showing the agreement under which the plaintiff was employed.”

■ Thereupon the court sustained the objection. Of course, the admissions of the plaintiff as to the alleged.oral contract were admissible against him under any theory of the case.

The above errors warrant a reversal of the judgment.

Judgment and order reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.