Walton v. McMorrow

McLaughlin, J.: On a former appeal the judgment recovered by the plaintiff was reversed and a new trial ordered ( Walton v. McMorrow, 39 App. Div. 667) on the' ground that the case on appeal did not show that the plaintiff “.did anything under the employment or rendered any services to the defendant for which he is entitled to be paid.” The action was brought to recover a certain sum alleged to have been earned by the plaintiff as a broker in effecting an exchange of ■certain property —an apartment house owned by the defendant— for property owned by one Chesebrough, and for which the plaintiff claimed commissions from both the defendant and Chesebrough. The facts are fully stated in the opinion delivered on the former appeal and in the opinion- delivered on the appeal from the judgment in Walton v. Chesebrough (39 App. Div. 665), and, therefore, ° it is unnecessary to again state them. * After a careful consideration of the record, we are unable' to see any material distinction between the case as now presented and the one presented on the former appeal. It is quite apparent that the plaintiff on the last trial attempted to bring this case within the Ohesébrough case, but in this he failed. In the Ohesébrough case it appeared that the plaintiff did not render any services, because he was requested by Chesebrough “ not to do so,” but to permit Chese-. brough to conduct the negotiations himself. Here no such request was made; all that the defendant, said was that if he wanted to see the plaintiff, he could send for him. There was no occasion for his seeing him, if, as the plaintiff claims, he had been employed to bring about an ex-change of properties. What the defendant wanted was the services of the plaintiff to bring about the exchange, and until that had been accomplished there was no occasion for the meeting. The plaintiff, according to his own testimony, went to the apartment house owned by the defendant for the purpose of securing rooms for himself and family, and while there accidentally ascertained that the defendant would like to sell the apartment house, or 'exchange it for other property, and learning that fact he obtained the defendant’s card and carried it to Chesebrough which, it may be [149] conceded, resulted in the defendant’s exchanging the apartment house for certain property owned by Chesebrough. This is all that the plaintiff did to bring the parties together, unless it be possibly interviews thereafter had with Chesebrough. He never saw the defendant again until an exchange had been made. It cannot be that 'upon such slight evidence as this, as suggested in the opinion delivered by Mr. Justice O’Brien on the former appeal, it can be held that commissions have been earned. The judgment is right and should be affirmed, with costs. Van Brunt, P. j., and Ingraham, J., concurred; O’Brien and Hatch, JJ., dissented.