Miller v. Vining

112 A.D. 304, 98 N.Y.S. 466, 1906 N.Y. App. Div. LEXIS 659

Opinion

Miller, J.:

The plaintiff has recovered á judgment for. broker’s commissions; on a sale of a house by the defendant to. one Donohue. It is undisputed that the plaintiff was employed at the agreed compensation' of $100; that he introduced the purchaser to the defendant; that different negotiations- were had resulting in a. failure of the parties to agree; that thereafter, the negotiations-being broken off, the plaintiff undertook to sell other properties of .different people to the proposed purchaser* and that about .a month afterwards, without the intervention of the plaintiff, the defendant and said purchaser came together on different terms, resulting in &• sale,

It is elementary that to be entitled to commissions the broker must be the procuring cause of the sale, and if his efforts fail his employer is not precluded from thereafter negotiating with the purchaser introduced by him, even on the same terms, without being obliged to pay commissions. The broker takes the risk of bringing the minds of the parties together so as to effect a bargain, and if he fail the mere fact that his efforts may have led to subsequent negotiations, which under more favorable circumstances have resulted in sale, does not alone entitle him to a commission. (Wylie v. Marine National Bank, 61 N. Y. 415; Sibbald v. Bethlehem Iron Co., 83 id. 378; Donovan v. Weed, 182 id. 43.)

We think that upon the entire proof the plaintiff has failed to bear the burden of proving that he was the procuring cause of the sale.

The judgment should, therefore, be reversed ajid a new trial ordered, costs to abide the event.

Hirschberg, P. J., Hooker, Gaynor and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.