Foss v. New York Central & Hudson River Railroad

Ingraham, P. J. (concurring):

I concur in the reversal of this judgment and dismissal of the complaint on the ground stated by my brother Laughlin, hut I do not concur with him in his conclusion that a broker engaged in a negotiation for the sale of real .property can receive a commission from the seller and at the same time contract with the purchaser to receive an advantage from him without disclosing such contract to the seller. A broker approaching the owner of real estate with an offer to purchase the property and making an agreement with the owner of the property that he shall receive a commission from the owner for his services in selling the property assumes towards the seller a position in which the utmost good faith is required on his part. The very fact that he undertakes to act in that capacity imposes this obligation upon him and whether he gives up the name of the customer or not if he is to receive his commission from the seller he cannot place himself in a position antagonistic to the seller’s interest and procure any advantage from the purchaser without disclosing the true condition of the seller. The plaintiff here assumed from the beginning of the negotiation that he was to get. his commission from the seller. The fact that he represented the purchaser in his endeavors to procure the property at as small a price as possible justified him in going to the owners of the property and making an offer and endeavoring to get the property at as low a price as possible, and if he had acted openly with the owners and stated that he repre*693sented the purchaser there would have been no objection to the transaction. But that he never did. He went to the owners of the property with the offer and demanded a commission if he carried out the transaction. To that the owners agreed. He thereby became hound to state to the owners who were to pay him for the services that he rendered his relation to the persons who had made the offer and that he was acting for them in procuring the property at as small a price as possible and could not be depended on to represent the owners in the transaction, and to show the utmost good faith. And it seems to me that if he had completed the sale the owners could have refused to pay him any commission upon the ground that, having brought an offer to them and asked them for a commission for services that he rendered to them in making a sale, he was all that time acting against their interests and was endeavoring, not to induce the purchaser to pay more, but to induce the seller to take less. This seems to me to be a distinct violation of his duty to the sellers as laid down in Dickinson v. Tysen (209 N. Y. 395). Certainly if he could not have recovered the commission as against the seller he suffered no damage because the defendant did not make the final offer to him which resulted in the purchase of the property.

McLaughlin, J., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.