Bouscher v. Larkins , 84 Hun 288 ( 1895 )

PRATT, J.

This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial. The action was brought by an assignee of a real-estate broker to recover commissions for the sole benefit of the assignor, who claimed to have earned the commissions by effecting an exchange of property belonging to the defendant with one Burr Wilson. It appeared in evidence that the assignor, one Swartz, was employed by the defendant as a broker, and that he attempted to negotiate a trade with one Reynolds of the farm of the situated in Saratoga, for two houses which did not belong to Reynolds, and also for some other property in New York City; but said negotiations never resulted in a trade. Indeed, Reynolds refused all offers made by defendant; and Swartz, although requested by the defendant, refused to negotiate further, and abandoned the matter, and it was declared off. The defendant afterwards learned from Reynolds that one Burr Wilson had become owner of the Lewis Avenue -houses, and opened negotiations with him, and effected a trade. Swartz had nothing to do with this last trade, and, so far as appears, did not know Wilson, or of any negotiations between Mm and the defendant. The decided weight of evidence upon the question whether the trade was entirely abandoned, and Swartz refused to go further with Reynolds or H-askis, the original parties with whom negotiations had been carried on, is to the effect that it was abandoned and declared off. The said Swartz did, however, attempt to secure some new parties who owned property in the city of New York, but no result was obtained therefrom. The well-settled rule is, if a broker abandons the trade or relinquishes his efforts, the principal is not precluded from negotiating with any person whom the broker has introduced; the broker is not entitled to commission. Wylie v. Bank, 61 N. Y. 415; Sibbald v. Iron Co., 83 N. Y. 378; Hay v. Platt, 66 Hun, 488, 21 N. Y. Supp. 362. We also think that the evidence was in favor of $250, instead of $500, as the amount of commission Swartz was to receive in case he effected a sale. If these views are correct, it follows that the judgment must be set aside, and a new trial granted. All concur.