Boyd v. Improved Property Holding Co.

Ingraham, J.:

The plaintiff has recovered in this action ' for services alleged to have been rendered by-him in procuring tenants for a building owned by the defendant. The complaint alleges that the defendant is indebted to the plaintiff in the sum of $2,500 for work, labor and services done and performed by the plaintiff for the.defendant at its special interest and request as broker in procuring tenants for the building and premises owned by defendant- and known as Ho. 341 Fifth ■ avenue. Plaintiff testified that he was a real estate broker and lie called on Mr. Corn, the president, of the defendant, in the spring of 1906 and asked him what places he had.to rent and Corn said he was going to erect a building at Ho. 341 Fifth ave- ■ nue; that plaintiff received a booklet of the building ■ fróm Corn and Corn “ incidentally said to me, in case 1 was not too busy at any time,'if I knew anybody that wanted a good thing or wanted a fine location, why, just kind-of mention liis name to him and he would take care of him and call and see .him, and I would get my commission just the same in case the deal was closed ; ” that prior to that time, the plaintiff had iipt known Mr.'.Corn personally; that at that-time the defendant was excavating the plot at Ho. 341 Fifth avenue, but no portion of the buildinghad then been erected. Plaintiff further testified that subsequently to the interview with" Corn he met a Mr. Angelo,'who was. president of the Harry ..Angelo Company, and asked him if he wished to move; that he showed the booklet to Angelo .and explained the whole thing to him; that he stated, to’Angelo that the rent for the first two floors of this building was to be .$21,500 and- Angelo said that was too high; that he might possibly go as high as $15,000, if die got the space he wanted,, when plaintiff said he would see Mr. Corn and see if he could-do anything better; that Angelo then said: All right, but I don’t want you to use my name in any way; ” that subsequently the plaintiff told Corn that he thought he had a person who might be interested in some space in his building at Ho. 341 Fifth ' avenue; that this person vas not willing to pay $21,500 for the two floors, but that he should .judge that he would be willing to pay $15,000; that Corn said, he could not let them at that price and suggested that the plaintiff’s customer take the upper floors, and plaintiff said he would go back and see .if he could do anything on that basis; that he again called to see Angelo and made this offer for the upper floors, when Angelo said he would not agree to it but afterwards said he might consider it if he got it around the price he wanted to pay; that plaintiff again saw Corn who asked the plaintiff who his man was and plaintiff said lie could not tell him the man’s name because the plaintiff had been expressly told not to give his name; that Corn then said if he knew the man or his business, he might make some concession but would have to know the man first. After some further con vernation the matter was then dropped, .Angelo went to Europe, and in September when he returned the -plaintiff tried to have an interview with him and failed. The plaintiff went to see Angelo again in October when he found Corn in his office talking to him. The plaintiff said nothing more about the lease to Angelo but called on Corn and told him he understood that he had been to see Angelo, to which Corn said : “You are not in on that.”

Angelo was called as a witness'for the plaintiff and testified that in the early part of April, 1906, the plaintiff called his attention to this building in course of construction and stated some prices for space in the building, bringing to Angelo the plans of the building; that he requested the plaintiff not to divulge his name to the owner of the building; that in the beginning of October, Corn called on Angelo, said that he had heard that Angelo was anticipating a move uptown, and brought to .Angelo’s attention the building at Ho, 341 Fifth avenue, of which he produced the plans. Angelo said he had had these plans before from the plaintiff. While this interview was proceeding in Angelo’s office the plaintiff called, but Angelo refused to see him. Angelo and Corn had further interviews in regard to the building,, and, after considerable negotiations, the lease was made in December. -

Corn testified that he first had an interview with Angelo in relation to a lease of these premises at the beginning of the year 1906;. that he saw Angelo several times before he left for Europe, and again saw him on his return from Europe in the early part of October ; that the plaintiff never mentioned Angelo or the Angelo Company to Corn; that the Angelo Company had been a tenant, of Corn before; and that plaintiff never made Corn any offer for the property that was subsequently leased to the Angelo Company. . Upon • this testimony I do not think that the plaintiff established any cause of action either upon an implied or express contract.

. It is established that before a broker can be entitled to his com- ■ missions he must produce a purchaser who is. ready and willing to enter into a contract upon his employer’s terms, and this implies and involves the agreement of buyer and seller and the meeting of their minds 'produced by the agency of the broker; that the broker must be the procuring cause of the sale. He must find a purchaser and the sale must proceed frorn his efforts acting as broker. (Wylie v. Marine Nat. Bank, 61 N. Y. 415; Sibbald v. Bethlehem Iron Co., 83 id. 381.) Here the plaintiff had absolutely no connection with the agreement that was subsequently made between the Angelo Company and the defendant. It is true that he had spoken-of the building to the president of the Angelo Company, but nothing had resulted from his efforts. He had made no lease, produced no lessee, gave to the defendant no information as to- the proposed tenant sufficient to, identify him, but, on the contrary,, refused to give the name of the.tenant on whose behalf he was acting to the defendant. ' ■ The negotiations which were instituted by Corn with Angelo, and which resulted in the final lease of the premises, had no connection in any way with the plaintiff. The lease would have been consummated, so far as appears, if the plaintiff had never existed. It is clear from the plaintiff’s testimony that the efforts of the plaintiff had not the slightest influence upon the final lease that was made, and he was not, therefore, in any seiise, the procuring cause" of the final arrangement. The plaintiff attempted to start a negotiation Without informing his principal of the. name of the proposed tenant, which resulted in no advantage to his employer, and these services being of no advantage to the defendant, imposed upon . the defendant no obligation. What was said by Mr. Justice Clarke in Willard v. Ferguson (125 App. Div. 868) applies to this case, and clearly shows that the plaintiff was not -entitled to commissions. The plaintiff testified that in his interview with Corn the latter said that if plaintiff knew anybody that wanted a good thing, or wanted a fine location, to mention his name to Corn and he would take care of him and call to see him and plaintiff would get his commission. Plaintiff was'not entitled to recover upon this express contract, as lie failed to perform, the one thing that was required of him and that was to mention the proposed tenant’s name to Corn. In no aspect of the case, therefore, is plaintiff entitled to a commission for the lease of the premises to the Angelo Company.

The plaintiff also claims to have been the procuring cause of a lease to the McKnight Realty Company. Plaintiff testified that he called the attention of Mr. McKnight, xtlio was an officer of that company, to this building; had some conversation with him about the building, and also spoke to Corn on the subject. But in relation to this building it is entirely clear that negotiations had been commenced in relation to it before the plaintiff interfered, and the lease was' entirely the result of negotiations between Corn and McKnight in relation to which the plaintiff performed no services. It seems to me the plaintiff was not the procuring cause of that lease and was not entitled to commissions therefor.

I think, therefore, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

McLaughlin, Clarke and Scott, LL, concurred; Houghton, J., dissented.