Hubbard v. Rehill , 27 N.Y.S.2d 513 ( 1941 )

In this action to recover for broker’s commissions, defendants were four individual owners, and three others who, as executors for a deceased owner, had a power of sale. The case was tried against the executors as individuals. At the close of the plaintiff's case, with plaintiff’s consent, the complaint was dismissed as to the four individual defendants first above referred to, there being a failure of proof that any one was authorized to engage a broker in their behalf. The case was tried and submitted to the jury against the other three defendants as an action in which plaintiff sought his commissions as a broker and not at any stage for damages against defendant Edward J. Eennelly (one of the executors) because he misrepresented Ms authority to engage plaintiff to act as a broker for all of the owners. There was a verdict against the three defendants second above referred to for the full amount of the commissions. The court set aside the verdict as to defendants Frank J. Lamb and People’s National Bank and Trust Company and granted a new trial as to them, and demed the motion of defendant Edward J. Fennelly to set aside the verdict and for a new trial. The three appealmg defendants had made motions to dismiss the complaint at the end of the whole case. Those motions should have been granted. Defendant Edward J. Fennelly was authorized in behalf of the three executors to sell the one-fifth interest of wMch they had a power of sale and was authorized to engage a broker for that purpose. By necessary implication, the broker would only be entitled to commissions for the sale of the one-fifth if the other owners joined in the sale. There was no proof that they had ever authorized the engagement of plaintiff and they did not enter into a contract for the sale of their shares to the person whom plaintiff brought as a buyer. There was, therefore, no liability on the part of these three defendants for commissions. As to defendant Edward J. Fennelly, judgment in favor of plaintiff and order denying said defendant’s motion to set aside the verdict and for a new trial reversed on the law, motion granted to the extent of setting aside the verdict, and the complaint dismissed as to said defendant on the law. As to defendants Frank J. Lamb and People’s National Bank and Trust Company, order settmg aside the verdict and granting a new trial to said defendants, in so far as appealed from, reversed on the law, and the complaint as to said defendants dismissed on the law. One bill of costs is awarded to appellants on the reversal and one bill of costs on the dismissal of the complaint as to the three appellants. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.