Hausman v. Herdtfelder

81 A.D. 46, 80 N.Y.S. 1039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1903
• Status: Published

Opinion

Laughlin, J.:

The plaintiff has recovered a verdict for $620 commissions on the theory that he obtained a purchaser for the premises owned by the defendant known as Nos. 168 and 170 Orchard street, in the city of New York, situate on the southeast corner of. Orchard and Stanton streets, the dimensions being fifty feet front by sixty-six feet in depth. The premises were occupied by two old houses-, of little value. The plaintiff was quite familiar with the neighborhood and property. The defendant was seventy-three years of age and resided at 417 East One Hundred and Sixteenth streets * The plaintiff testified that he was informed by a friend that defendant desired to sell and he called at her residence and she employed him; that he asked the dimensions of thb property and she gave them as fifty feet front by seventy-six feet in depth; that he procured one Cohn, another real estate broker, as a purchaser-upon her terms. Oohn also testified that at an interview at which, he was present she represented the property to be of these dimensions. Oohn, after delivering a check for $250 on account of the purchase, refused to sign a contract because. the depth was only sixty-six instead of seventy-six feet, as had been represented to him,, and his check was returned. The defendant denied making any representation to the plaintiff concerning the dimensions of the-, premises and testified that she referred him to her attorneys.

Upon these facts we think the plaintiff was not entitled to any commissions. He was employed, not to sell a certain number of feet of land, but the premises as they were occupied and with which he was familiar; and he did not procure a purchaser ready and willing to enter into a legal contract for the purchase thereof upon, the terms offered by the owner. Assuming, as the jury have found, that she did inform him that the lot was seventy-six feet in depth, that was at most a mere representation and not a warranty and it does not authorize a recovery of commissions upon the theory of the cases .which hold that where the contract fails on account of the owner’s- . inability to perform, the broker is - entitled to recover. (Curtiss v. Mott, 90 Hun, 439; Diamond & Co. v. Hartley, 47 App. Div. 1; S. C., 38 id. 87; French v. Brush-Swan El. Light Co., 39 N. Y. St. Repr. 515.)

It follows that the judgment and order should be reversed-, and a new trial granted, with costs to appellant to abide the event.

' Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ;, concurred.

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