Lyons v. Nebco Realty Corp. ( 1926 )

Bijur, J.

On the trial of this action to recover broker’s commission, plaintiff Samuel H. Lyons was asked: “ Q. You are a duly licensed real estate broker? A. Yes. Defendant’s counsel: Objected to. The Court: Overruled.”

I assume the objection was intended to suggest that the license itself should have been produced, but at all events defendant made no explanation of the objection. On the motion of defendant’s counsel to dismiss the complaint the only ground stated was “ that plaintiff had not shown that the broker produced a purchaser ready, able and willing to consummate this transaction.”

It is now urged on this appeal, for the first time, that said plaintiff did not testify that he was duly licensed at the time of his employment or at the time of the consummation of the transaction. (Real Prop. Law, § 442-d, as amd. by Laws of 1926, chap. 831.) No such point was mentioned at the trial, and, as I have shown, it was not even suggested. Under these circumstances we may well infer that the defect was merely formal and one which might have been corrected had attention been called thereto (see Ramsay v. Miller, 202 N. Y. 72) and must be disregarded on appeal.

As to the consideration that the consummation of this transaction by plaintiffs unless they were duly licensed may have been a misdemeanor, I may say that this was a civil trial in which defendant was at liberty to raise any point to defeat plaintiffs’ cause of action. Not having raised the point, now presented on appeal for the first time, as to a matter of formal defect in pleading or proof, we may not, in my opinion, indulge in conjecture concerning a possible illegality.

Judgment affirmed, with twenty-five dollars costs.

Present — Bijur, O’Malley and Levy, JJ.