Freeman v. Polstein

49 Misc. 644, 97 N.Y.S. 1032

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinion

Scott, J.

This is an action by a real estate broker for commissions. Unlike most of such actions, it is brought against the purchaser. The plaintiff brought to defendant’s attention some houses which were for sale and was authorized to buy them upon certain terms. The sale was never consummated, and the property was sold' to some one else. Plaintiff, persisting, next solicited authority from the defendant to negotiate for the purchase of the contract of sale. He was unable, however, to negotiate such a purchase on terms acceptable to the defendant; and, while he was working, at it, another broker stepped in and procured an offer acceptable to and accepted by defendant.. To charge a purchaser with liability for commissions requires satisfactory proof of a special contract to that effect; for, in the usual course of business, it is the seller, and not the purchaser, who pays the commission. There is no proof of such a contract, and there is positive proof that plaintiff never brought about the sale. Doubtless he was active and energetic in his efforts, but he failed. There is nothing in the evidence to justify the judgment. Upon the plaintiff’s own testimony, the complaint should have been dismissed.

Glegbrioh and Geexenbatjm, JJ., concur.

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