Levy v. Timble

Dowling, J. The facts in this case are undisputed. The defendants had entered into a contract for the purchase of certain real estate, situated in this city, from one Schoner. After the contract was executed the defendants employed the plaintiffs, who were real estate brokers, to sell the contract, and agreed to pay plaintiffs all over the sum of $1,000 that [395] plaintiffs were able to obtain above the price named in the contract. Subsequently the plaintiffs produced one Goldstein as a proposed purchaser of the contract, and a meeting between Goldstein, one of the plaintiffs, and the defendants was had, but the sale was not consummated. The next Saturday thereafter one of the plaintiffs informed the defendants that he had found a purchaser, one Fittashauer, and had sold him the contract for $1,000 net, and an appointment was made for a meeting of the parties at plaintiffs’ office the next morning. The defendants failing to appear, one of the plaintiffs went to the defendants and they agreed to meet the plaintiffs at 2 p. m. of that day. When the defendants came to plaintiffs’ office, one of the plaintiffs being absent, it was arranged that all parties should meet the next morning, Monday. Fittashauer went to the plaintiffs’ office at the time appointed, and, upon defendants being communicated with by telephone, they informed plaintiffs that the contract had been sold by them for more than Fittashauer had promised to pay. It appeared that Fittashauer had finally agreed to pay $44,000, as the purchase price of the premises, which was $1,500 more than defendants had contracted to pay Schoner. At the close of the plaintiffs’ testimony the court, upon motion of the defendants’ attorney, rendered a judgment in favor of the defendants upon the ground that the plaintiffs, not having written authority to sell real estate, came within the inhibition of section 640d of the Penal Code, chapter 128, Laws of 1901, and were thereby precluded from recovering. This was error. That statute is penal in its nature and must be strictly construed. Gay v. Seibold, 97 N. Y. 472. Mo intent of the Legislature can be read into its provisions and its language must be given such meaning only as is plainly and clearly expressed thereby; “its provisions are aimed at irresponsible brokers who would constitute themselves agents by their own fiat, and then, whether successful or not, seek to fasten liability on the owners of property for commissions on abortive sales.” Imperato v. Wasboe, 47 Misc. Rep. 150. It refers to sales of real property only, and was not intended to cover every transaction having relation to real estate. Although the witnesses, in. [396] giving their tesimony, in several instances, speak of the transaction as being a sale of “ the houses,” the agreement between the parties herein is clearly shown to have been one for the sale of defendants’ interest in the contract held by them and not a sale of the real estate mentioned therein. Judgment, therefore, should not have been given for the defendants upon the merits, as judgment upon the merits can only be given in cases: “ Where, at the close of the whole case the court is of the opinion the plaintiff is not entitled to recover as a matter of law ” and “ Where the court sustains a demurrer,” etc. Municipal Court Act, § 249. The judgment can at most only he regarded as one of nonsuit (§ 248, supra), and it remains to be seen whether the plaintiffs failed to make out a cause of action. In cases of a nonsuit, granted at the close of plaintiff’s case, the testimony given must be taken in the light most favorable to the plaintiff, and all legitimate inferences in support of the plaintiff’s contention may be drawn therefrom. (St. John v. N. Y. C. & H. R. R. R. Co., 165 N. Y. 241, 246.) Examined with this rule in mind, the plaintiffs’ proof, uncontradicted, shows a right to recover. Fdttashauer, the plaintiffs’ proposed purchaser of the contract, testified that he was present at the time and place appointed, ready and willing to take- over the contract and pay the agreed price. Although a refusal of the defendants to- attend such meeting and transfer the contract to Eittashauer was said by them to he for the reason that they had already sold the same, there is no evidence that such sale was made prior to the time that they were notified by the plaintiffs of the sale of the contract by them to Eittashauer, and defendants’ silence regarding any sale by them up to the time designated for the final meeting of the parties leads to the inference that the sale made by them was subsequent to such notification and, consequently, at a time when •the plaintiffs had apparently earned their commissions. That defendants recognized their liability, in some measure at least, is supported by the testimony to the effect that defendants, on the Monday aforesaid, stated to the plaintiffs . that they had “ $2,000 profit on the houses * * * and will take care of you, anyway.” [397] Judgment reversed and new trial ordered, with costs to the appellants to abide the event. Truax, J., concurs.