Weinberg v. Smith

Appellate Terms of the Supreme Court of New York

Weinberg v. Smith

152 N.Y.S. 1030

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 6, 1915

StatusPublished

Cited by1 cases

This text of 152 N.Y.S. 1030 (Weinberg v. Smith) 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

Weinberg v. Smith, 152 N.Y.S. 1030 (N.Y. Ct. App. 1915).

Pincite

Opinion

GUY, J.

The action is to recover commissions for leasing real property. The complaint alleges that at the request of the defendant the plaintiffs obtained one Philip Farber, who agreed with defendant to hire the property in question for the term commencing Septem-. ber 1, 1913, and ending February 26, 1919, at an aggregate rental of $169,500, and that thereafter a lease was actually entered into between the defendant and the said Farber, under the name of the Farber’s Stores, Incorporated, for the aforesaid term at said rental.

The plaintiff Smith (a brother of the defendant) testified that at one of the several conferences between the parties it was agreed that Farber was to make the lease and that the lease was to be assigned to the corporation. No lease was ever made by Farber, and, of course, no such assignment was made. Farber, a witness for plaintiffs, testified that the first time he spoke to the defendant about a lease of the premises Farber said he had several stores; that it was pretty hard to get away at the start, but he would get his half-brother Rellcin interested, so the two of them could go into it; that he and Rellcin afterwards called on the defendant, who asked him how much money they could invest; that Farber replied that Relkin and he were ready to invest about $10,000 if the defendant was ready to help them along, not taking any security; that they were ready to talk business and close the deal, but that Farber figured it was impossible to take up a business as large as that for $10,000, and he accordingly suggested to the defendant that the best thing to do was to organize a corporation; that in accordance with Farber’s suggestion it was arranged a corporation [1031]*1031should be formed, and that Farber and his half-brother Relkin should" put up $1,000 apiece; that Farber subsequently put up $1,000, but Relkin, after having handed over his check, demanded and received it back, and in reply to the question by the trial court, “What did you put your $1,000 up for?” said, “I was a sucker; I found him out after * * * I wouldn’t give him the money.”

Subsequently an arrangement was made between the defendant and Farber, by which the corporation, Farber’s Stores, Incorporated, was organized, with a capital stock of $25,000, Farber contributing $7,000, and the defendant contributing $18,000, and a lease was made to the corporation of the premises in question.

It is thus apparent, from the plaintiffs’ own case, that not only did they fail to prove the allegations of the complaint, but that Farber never agreed to make the lease as claimed, that no lease was made to him under any other name, and that the result of their efforts was simply to produce a person who was not ready and willing to lease the premises upon the terms prescribed by the defendant. The subsequent formation of the corporation and the leasing of the premises by the defendant to the company were brought about, not by the plaintiffs, but by the defendant and Farber, and but for the financial support of the defendant no such results would have been obtained.

Judgment and order reversed, with costs, and complaint dismissed, with costs. All concur.

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GUY, J.

The action is to recover commissions for leasing real property. The complaint alleges that at the request of the defendant the plaintiffs obtained one Philip Farber, who agreed with defendant to hire the property in question for the term commencing Septem-. ber 1, 1913, and ending February 26, 1919, at an aggregate rental of $169,500, and that thereafter a lease was actually entered into between the defendant and the said Farber, under the name of the Farber’s Stores, Incorporated, for the aforesaid term at said rental.

The plaintiff Smith (a brother of the defendant) testified that at one of the several conferences between the parties it was agreed that Farber was to make the lease and that the lease was to be assigned to the corporation. No lease was ever made by Farber, and, of course, no such assignment was made. Farber, a witness for plaintiffs, testified that the first time he spoke to the defendant about a lease of the premises Farber said he had several stores; that it was pretty hard to get away at the start, but he would get his half-brother Rellcin interested, so the two of them could go into it; that he and Rellcin afterwards called on the defendant, who asked him how much money they could invest; that Farber replied that Relkin and he were ready to invest about $10,000 if the defendant was ready to help them along, not taking any security; that they were ready to talk business and close the deal, but that Farber figured it was impossible to take up a business as large as that for $10,000, and he accordingly suggested to the defendant that the best thing to do was to organize a corporation; that in accordance with Farber’s suggestion it was arranged a corporation [1031]*1031should be formed, and that Farber and his half-brother Relkin should" put up $1,000 apiece; that Farber subsequently put up $1,000, but Relkin, after having handed over his check, demanded and received it back, and in reply to the question by the trial court, “What did you put your $1,000 up for?” said, “I was a sucker; I found him out after * * * I wouldn’t give him the money.”

Subsequently an arrangement was made between the defendant and Farber, by which the corporation, Farber’s Stores, Incorporated, was organized, with a capital stock of $25,000, Farber contributing $7,000, and the defendant contributing $18,000, and a lease was made to the corporation of the premises in question.

It is thus apparent, from the plaintiffs’ own case, that not only did they fail to prove the allegations of the complaint, but that Farber never agreed to make the lease as claimed, that no lease was made to him under any other name, and that the result of their efforts was simply to produce a person who was not ready and willing to lease the premises upon the terms prescribed by the defendant. The subsequent formation of the corporation and the leasing of the premises by the defendant to the company were brought about, not by the plaintiffs, but by the defendant and Farber, and but for the financial support of the defendant no such results would have been obtained.

Judgment and order reversed, with costs, and complaint dismissed, with costs. All concur.

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152 N.Y.S. 1030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weinberg-v-smith-nyappterm-1915.

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