Morris v. Poundt

Appellate Terms of the Supreme Court of New York

Morris v. Poundt

51 Misc. 6, 99 N.Y.S. 844

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1906

StatusPublished

This text of 51 Misc. 6 (Morris v. Poundt) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Morris v. Poundt, 51 Misc. 6, 99 N.Y.S. 844 (N.Y. Ct. App. 1906).

Pincite

Opinion

Levéutbitt, J.

The plaintiff neither pleaded nor proved a cause of action. • He alleged in his complaint that, pursuant to employment by the defendant, he procured a tenant for certain premises owned by her; that a lease for ten years was thereupon executed, which reserved to the tenant tk$ privilege to purchase the premises for $15,000 at any time within the first five years of the term; that she paid him for [7]*7his services; that, shortly before the expiration of the five-year period, he induced and procured the tenant to take advantage of the privilege and to consummate the purchase; that the title was passed and the deed delivered; that he demanded as his commission $150, one per cent, of the purchase price, and that the defendant refused to pay.

Even if the most liberal construction be placed upon the plaintiff’s evidence, he proved those allegations, certainly nothing more. There was a fatal omission in pleading and proof. Employment by the defendant to effect the sale was neither alleged nor shown.

On the trial the plaintiff made no pretense that the defendant employed him, but, on the contrary, he repeatedly asserted that he was acting at the instance and for the benefit of the tenant and notwithstanding the expressed unwillingness of the defendant to make the sale. He testified that he, without the defendant’s knowledge, called the tenant’s attention to the approaching expiration of the option period; that the tenant, to whom he frequently referred as his “ client,” instructed him to notify the defendant that the option to purchase would be exercised; that he carried out these instructions; that the defendant refused to convey; that she claimed she was not bound by the option and insisted upon an advanced price; that he urged the tenant’s claim and tried to convince her that she could not escape from the provision of the lease, but that she did not yield until so advised by her counsel.

If the judgment should be enforced, an agent would be rewarded for services not only unsolicited but for services rendered against the wishes and against the interests of his principal.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide event.

Gilbersleeve and McCall, JJ., concur.

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

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Levéutbitt, J.

The plaintiff neither pleaded nor proved a cause of action. • He alleged in his complaint that, pursuant to employment by the defendant, he procured a tenant for certain premises owned by her; that a lease for ten years was thereupon executed, which reserved to the tenant tk$ privilege to purchase the premises for $15,000 at any time within the first five years of the term; that she paid him for [7]*7his services; that, shortly before the expiration of the five-year period, he induced and procured the tenant to take advantage of the privilege and to consummate the purchase; that the title was passed and the deed delivered; that he demanded as his commission $150, one per cent, of the purchase price, and that the defendant refused to pay.

Even if the most liberal construction be placed upon the plaintiff’s evidence, he proved those allegations, certainly nothing more. There was a fatal omission in pleading and proof. Employment by the defendant to effect the sale was neither alleged nor shown.

On the trial the plaintiff made no pretense that the defendant employed him, but, on the contrary, he repeatedly asserted that he was acting at the instance and for the benefit of the tenant and notwithstanding the expressed unwillingness of the defendant to make the sale. He testified that he, without the defendant’s knowledge, called the tenant’s attention to the approaching expiration of the option period; that the tenant, to whom he frequently referred as his “ client,” instructed him to notify the defendant that the option to purchase would be exercised; that he carried out these instructions; that the defendant refused to convey; that she claimed she was not bound by the option and insisted upon an advanced price; that he urged the tenant’s claim and tried to convince her that she could not escape from the provision of the lease, but that she did not yield until so advised by her counsel.

If the judgment should be enforced, an agent would be rewarded for services not only unsolicited but for services rendered against the wishes and against the interests of his principal.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide event.

Gilbersleeve and McCall, JJ., concur.

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

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Bluebook (online)

51 Misc. 6, 99 N.Y.S. 844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-poundt-nyappterm-1906.