The plaintiff, a business broker, sues a fellow broker on an alleged oral promise to share the fruits of the negotiation and sale of the stock interest of a corporation. The plaintiff, Michael Dura, claims that in August of 1965, Lehman Brothers told him it would like to sell the Drew Chemical Corporation stock and would pay him a finder’s fee. And, in October, 1966, the plaintiff orally divulged the magic name, Drew, to the defendant, Walker, Hart & Co., and the latter, again orally, according to the plaintiff, promised to divide equally any finder’s fee which might eventuate. In January of 1968, the Slick Corporation agreed to purchase Drew and gave to the defendant Hart a written undertaking that Hart would receive an agreed consideration for its efforts, which it did receive, after the Slick stockholders had approved the acquisition of Drew. Hart denies any agreement at all with the plaintiff.
On these facts Special Term has granted the defendant’s motion for summary judgment on the ground that plaintiff’s action, based on an oral promise, is barred by subdivision 10 of section 5-701 of the General Obligations Law. We agree.
The plaintiff urges that the statute does not apply to him because his oral agreement was to share a finder’s fee and need not be in writing. We do not think the statute can be so easily sidestepped. It has already been established that the statute is not to be evaded by labeling an action for a finder’s fee one in “ quantum meruit ”, or “ tortious conspiracy ”, or “ misrepresentation ”. (Intercontinental Planning v. Daystrom, Inc., 30 AD 2d 519 [1st Dept.], affd. 24 N Y 2d 372.) Nor do we think it can be dodged by deftly calling the oral relationship one of “ joint venture ”. Not that in the instant case any of the trappings of a joint venture are present. The purpose of the statute is to fend off unsubstantiated claims of ‘1 would be” brokers and finders who come in from left field with claims not supported by written evidence. (Minichiello v. Royal Business Funds Corp., 18 N Y 2d 521.) The fact that here the claimant only wants half the cake should make no material difference, nor set the claim apart from the necessity of a writing. The broad language of the statute and its stated purpose permit no such refined exceptions.
Perhaps the answer to the plaintiff’s complaint, if there be merit to his story, is that he should have been less informal in dealing with the defendant Hart, which apparently, with some legal sophistication, protected itself with a writing, knowing that a mere oral arrangement, in this area of the business world, is unenforceable. In Intercontinental {supra), the Court of Appeals refused even to approve an alleged “ oral agreement
And it is our further thought that by now, among the business cognoscenti, it is well known that in New York any knowledgeable claimant to a fee in connection with the sale of a business interest first arms himself with a writing.
Nor do we regard the recent Court of Appeals ease of Bradkin v. Leverton (26 N Y 2d 192) as at odds in any way with this disposition. That opinion states the statute does not apply to a finder and a third party (p. 199) “ such as the defendant before us ’ ’. Confined to its facts, the Bradkin case is aimed at a defendant, who as an interloper, unscrupulously intercepts a fee already earned by a bona fide finder already holding a written agreement which meets the statutory requirements; the Bradkin case also has elements of overreaching and conflict of interest on the part of the defendant therein as a corporate officer and director. Our case is not only devoid of these factors, the plaintiff herein has a writing with nobody.
Accordingly, we believe Special Term was correct in granting summary judgment in favor of the defendant.