O'Connor v. Amerex Holding Corp. , 300 N.Y.S. 1205 ( 1937 )

Action brought on contract to recover (1) from certain defendants, or one or more of them, compensation by way of commissions on the sale of certain corporate stock, and (2) damages for breach, by other defendants, of an alleged contract to procure for the plaintiff certain options to purchase other corporate stock. The amended complaint set out two causes of action, one against Amerex Holding Corporation, The Chase National Bank of the City of New York, and Earle G. Hines, for commissions on. the sale of certain shares of stock. The second cause was against John P. Biekell and others, copartners doing business under the firm name of Thomson & McKinnon, for breach of an alleged agreement to give plaintiff a call or option on certain other shares of stock. The cause was tried before the co'urt and a jury. The plaintiff was nonsuited as to .both causes at the close of his proofs. Judgment in favor of the defendants, dismissing the amended complaint and for costs against plaintiff, was entered accordingly. Judgment in so far as it dismisses the first cause of action as against The Chase National Bank of the City of New York reversed on the law and a new trial granted as to that defendant on the first cause of action, with costs to appellant to abide the event. As to all other defendants, judgment unanimously affirmed, with costs to respondents Amerex Holding Corporation and Hines jointly, and to respondents Biekell and others, copartners doing business under the firm name of Thomson & McKinnon, jointly. The dismissal of the complaint as to all defendants except the defendant bank was lawful. There was evidence, however, which would have warranted the jury in finding that part of the stock on the sale of which plaintiff claimed a commission was owned by the defendant bank, and that defendant Hines had authority from the bank to sell its stock, and also authority from the same source to agree to pay to plaintiff a commission of five per cent on the selling price thereof if the latter should bring to Hines the name of a prospective purchaser to whom a sale should be made later. There was also evidence which would have warranted the jury in finding that plaintiff rendered performance in accordance with the offer which he testified Hines made. Plaintiff failed, however, to adduce evidence which would have supported a verdict against any defendant other than the bank. Hagarty, Carswell, Adel, Taylor and Close, JJ., concur.