McCormack v. McCaffrey , 74 N.Y.S. 836 ( 1901 )

McAdam, J.

This action was to recover a balance due for biokerage in procuring the exchange of certain real property of the defendant, Nos. 24 and 26 West One Hundred and Thirty-first street,, for other real property, known as No. 11 East One Hundred and Thirty-first street, belonging to Mrs. Gilman.

It appears that the defendant’s husband went to the plaintiff’s real estate office, and left the defendant’s property for sale. Thereafter the defendant and her husband called at the plaintiff’s office and, while looking over sketches on the wall of property for sale, the defendant asked the plaintiff if her husband had left her property for sale, and the plaintiff said he had. It further appears that the plaintiff showed the property to a Mrs. Upton, and then introduced her to the defendant, who showed Mrs. Upton through the property; after which Mrs. Upton told the defendant that she would let her know, through the plaintiff, whether she would take the property or not. The exchange was finally consummated, and the contract was signed by Mr. McCaffrey for his wife and by Mrs. Upton for Mrs. Gilman, and was afterwards carried out by the parties. After the sale was closed the plaintiff called on the defendant, who was then in company with her husband. The plaintiff spoke to them about his brokerage on the sale, and they said that, as soon as they had obtained a second mortgage on the property, or collected money enough from the rents, they would pay Ms commissions. The husband afterwards paid the plaintiff $100 on account, and promised to pay the balance. Such a transaction showed an employment of the plaintiff by the husband of the defendant, acting as her agent, and a recogmtion of the husband’s act amounting to a ratification by her, equivalent to an original personal employment by her. Story Agency, § 244; Commercial Bank v. Warren, 15 N. Y. 577; Keeler v. Salisbury, 33 id. 648. It was, therefore error for the justice to hold that the plaintiff had not made out a prima facie case sufficient to call upon the defendant for some explanation; and the judgment, dismissing the complaint must be reversed and a new trial granted, with costs to abide the event.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment reversed, and new trial granted, with costs to abide event.