Wolff v. Denbosky

Hascall, J. Plaintiffs, as real estate brokers, brought action to recover, upon an alleged promise on the part of defendant to pay them “ for their services in negotiating the purchase ” of certain real estate, a commission of one per cent, on the purchase-price, provided the defendant purchased the premises for a less sum than $192,000, and the amount due them was $1,900. The defendant admitted that plaintiffs were brokers; that defendant’s grantor delivered to him deeds of conveyance of title to the property, and that the selling price was the sum alleged, but denied all the other allegations of the complaint. At the close of plaintiffs’ case, the defendant moved to dismiss the complaint, on the ground that, at the time plaintiffs alleged that they were employed by defendant to procure the purchase, they were at the same time under employment to sell, were actually offering the property to others than defendant, that they could not act in a dual capacity as agents for both parties, with their agency undisclosed, and that, in accepting an alleged employment from the defendant, any promise to pay commission, as they alleged, would be without consideration, illegal and void. Again, at the close of all the testimony, a similar motion was made, as also one for direction of a verdict in favor of defendant, upon the ground that it appeared, by the undisputed evidence, that the brokers were acting for both sides, without any disclosure to the [645] defendant of-their agency for Mr. Lennon. Due and proper exceptions to the ruling of the court upon these applications appear upon the record, also due exceptions to certain charges of the court, as well as to certain refusals to charge. The judgment and order should be reversed. We think that the court erred in refusing the defendant permission to establish under a general denial the fact that another party was to pay the commission (Brierly v. Connelly, 31 Misc. Rep. 268; Norman v. Reuther, 25 id. 161; Chatfield v. Simonson, 92 N. Y. 209); also in excluding evidence which tended to prove this defense. This latter suggestion finds authoritative support from the Appellate Division of the Supreme Court for the First Department (Gracie v. Stevens, 56 App. Div. 203), which very distinctly enunciates that if the broker’s skill and judgment were relied upon by defendant, then his agreeing to act in a similar capacity for the other party, where duty and interest might conflict, his acceptance of such arrangement and its concealment from defendant would avoid his right to recover any compensation. There was error also in the exclusion of evidence that plaintiffs had not informed defendant of the double employment. (Frankel v. Wathen, 58 Hun, 543; Robinson v. Clock, 38 App. Div. 67.) Hnder these circumstances the complaint should have been dismissed. Especially was it error, we think, to decline to direct a verdict after defendant’s evidence had, in great part, confirmed his allegations, and the support they found from .cross-examination of plaintiffs’ witnesses. It was manifest error for the court in its charge to find as matter of fact, that there was no proof in the case that plaintiffs ever received or demanded commission from Mr. Lennon, or that it did not appear that Lennon had any financial interest in the result; these were facts peculiarly within the province of the jury, and it was error for the court to instruct as it did and thus remove certain testimony from the jury’s consideration. We also think that the Trial Term was at fault in declining to charge the jury, that if they found by the terms of the alleged agreement that the brokers were to do nothing, then such promise was without consideration and the alleged agreement void. Without further discussing the merits of additional objections and exceptions noted for the appellant, it would appear that sufficient have been set forth to uphold our conclusion. The judg [646] ment and order appealed from should he reversed and a new trial-ordered, with costs to the appellant to abide the event. Delehanty and McCarthy, JJ., concur. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.