Pritzker v. Wyser

Judgment reversed on the law and the facts, with costs, and judgment directed for plaintiff for the amount paid by her to defendants, $4,550, with interest, and the defendants’ counterclaim dismissed, with costs. In our opinion, the documentary evidence introduced on the trial of this case establishes by the greater weight of evidence that the agreement between the parties was that the defendants should act as brokers for plaintiff in all of the transactions in question, and the finding of the trial court to the contrary and that the agreement was that the defendants should act as principals is against the weight of evidence. As the defendants conceded at the opening of the trial that they did act as principals and as, in so acting, they violated their agreement with plaintiff and their duty to her as her brokers, and as she, upon learning such fact, repudiated the transactions, she is entitled to recover the amounts paid to them by her. (Mayo v. Knowlton, 134 N. Y. 250; Taussig v. Hart, 58 id. 425; Stiebel v. Lissberger, 166 App. Div. 164.) Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and conclusions will be made in conformity therewith. Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur. Settle order on notice.