Bender v. Benenson Realty Co.

Martin, J.: This action was brought by plaintiff, an experienced real estate broker, to recover $3,447.50 alleged to be due from defendant as commissions for services upon the exchange of properties. The complaint alleges the contract, the performance of services thereunder, and their reasonable value in the sum of $3,947.50, for which amount, less $500, alleged to have been received on account, judgment is demanded. The answer denies the contract alleged and sets forth, as the only contract between the parties, an express agreement in writing whereby plaintiff agreed to accept in full for his services as such broker the sum of $500, it being alleged that the $500 was paid [to plaintiff in full for his services and was by him “ accepted in full for his brokerage fees upon said sale.” There is no dispute that plaintiff performed services as broker in bringing about an exchange of properties, including, property owned by defendant. The difference between the parties is with reference to the amount of the commission plaintiff became entitled to receive, defendant’s contention being that he is limited by his special agreement to the sum of $500 in full for his services, and •is concluded by his acceptance of that amount in full settlement of his claim. Plaintiff’s testimony is to the effect that after the terms were arranged and agreed upon, the representative of defendant required him to agree in writing that the commission would be $500, instead of the much larger amount alleged in the complaint; that he objected [480] to this, but rather than see the deal fall through, he finally agreed to take the $500 and signed a writing which reads: “ Benenson Realty Co. : June 28 /20. “ Gentlemen.— To induce you to enter into a contract of exchange between yourselves and my client, Mr. J. Greenberg for the properties No. 251 Fort Washington Avenue and 120 West 18th Street, giving you $48,000 in cash difference in equity I agree to accept in full payment for my commission from you the sum of five hundred $500.00 same to be made [paid?] to me upon actual signing of the contract. „ NATHAN BENDER ” Plaintiff accepted $250 on account. He later accepted the other $250 and gave a receipt in full. It appears from other testimony in the case that after the price had been virtually agreed upon, but while other essential terms were still open and being discussed, a conversation occurred between plaintiff and defendant’s representative which led to his signing the writing quoted above. The testimony shows that certain rents were not as represented, and the deal was about to “ fall through,” to use plaintiff’s language, unless he consented to accept the $500 in full for his commissions. It also appears that he was to receive commissions from the other party to the exchange; and that when plaintiff agreed to take $500 in full from defendant, it had been discovered on defendant’s side that certain rents had been misstated by plaintiff and Greenberg who was to take defendant’s property. When the first $250 was paid by defendant to plaintiff, the receipt referred to “ balance due $250; ” and when the second $250 was paid, the- receipt referred to it as “ payment received in full.” It is apparent from the testimony that the terms had not been agreed upon and the parties had not been brought together when plaintiff agreed to accept $500 in full for commission from the defendant. Plaintiff insists that the whole matter had been arranged when the question as to the rentals of one of the properties arose. This is most unlikely. Naturally one about to purchase property should know the amount of the rents before agreeing on the terms of sale or exchange. The plaintiff says he accepted the $500 so that the deal would not fall through. If it had been consummated, as he now asserts, how could it fall through? Plaintiff’s testimony is far from convincing. In one place he testified: “ Q. So that when-you said you would take $500 in full, you didn’t mean it? A. No sir. Q. You were lying, is that right? A. Well, I was lying, yes.” [481] The judgment should be reversed as against the evidence, and a new trial ordered, with costs to the appellant to abide the event. Clarke, P. J., Dowling and McAvoy, JJ., concur; Finch, J., dissents.