Tamarin v. Fitzpatrick

125 Misc. 823, 211 N.Y.S. 616, 1925 N.Y. Misc. LEXIS 989

Opinion

Per Curiam:

Judgment and order unanimously reversed on the law, with thirty dollars costs to appellants, and judgment directed for the defendants, dismissing the complaint, with appropriate costs in the court below.

Plaintiff failed to prove that he was a licensed broker under sections 440 and 440-a of the Real Property Law (as added, by Laws of 1922, chap. 672). That section applies to a broker who procures the sale of a lease. The transaction to consummate in which the plaintiff was engaged included the transfer of a lease. Although a lease is personal property (Rodack v. New Moon Theatre, 121 Misc. 63), it is an estate or an interest in real property, as that term is used in section 440 of the Real Property Law. (See Real Prop. Law, §§ 30, 33, 240, 242, 249; Fifth Avenue Building Co. v. Kernochan, 221 N. Y. 370.) Since part of the consideration was illegal, and the good cannot be separated from the bad, there may be no recovery by plaintiff in the absence of proof that he is a licensed broker.

Present: Cropsey, Lazansky and MacCrate, JJ.