Robert v. Sire

33 Misc. 755, 67 N.Y.S. 860

Opinion

Giegerich, J.

Footnotes

•

*

The plaintiff, a real estate broker, sues for services and disbursements in procuring for the defendant a loan of $19,000, or rather a customer ready to make the loan, the transaction never having been consummated in fact. Plaintiff’s entire claim is for $345, made up as follows: Ninety-five dollars, being one-half of one per cent, on the amount of the loan, for his services; $190, being one per cent, on that amount, the attorney charged for searching the title, and the remaining $60, being disbursements made in the course of the search. The justice below rendered judgment for $95 and costs, from which the plaintiff has appealed, on the ground that, decision having been made in his favor on the one item, it necessarily follows from the evidence that the other two items should also have been allowed, all being supported by the same proofs.

An inspection of the record, however, does not show this to be the fact. The evidence given by the plaintiff as to* the making of the contract is as follows: “ Q. What did he (defendant) say to you in reference to your services' in obtaining the loan and about having title searched? A. lie said he would pay one and a half per cent, and disbursements, including lawyer’s and broker’s fees. Q. What were the lawyer’s fees to be? A. They were to be one per cent, and disbursements. Q. And your services one and onehhalf per cent.? A. Yes, sir.”

And, on cross-examination, the plaintiff testified: “ I told him (defendant) that Mr. Williams’ (the attorney) charge would be one per cent, and disbursements, and my charge would be one and one-half per cent., and he agreed to pay that.”

•It is to be noted that there is no statement in this testimony either that the defendant promised to pay the plaintiff the agreed amount of one per cent, and disbursements, or that the plaintiff promised to pay the attorney those amounts. The language testified to might well mean that the defendant was to pay the plaintiff for what the latter did, and the attorney or the client who made the loan, for what the attorney did, and for the attendant disbursements; the plaintiff being, so. far as the latter was con cerned, only the defendant’s authorized intermediary in making such an offer to the attorney or his client. Finck v. Menke, 31 Misc. Rep. 748.

It is evident from the judgment that the justice below did not consider that the right to sue for those sums was vested in the plaintiff by the agreement above. It is evident also from the assignment- of this light to the plaintiff, which was offered in evidence, but excluded because not "within the pleadings, that the latter had the same view of the transaction. We also take that view.

The judgment should be affirmed, with costs.

O’Gorman, J., concurs.

Judgment affirmed, with costs.

Opinion rendered by the associate justices after the death of Presiding Justice Beektnan.— [Rep.