Opinion
March, 1896.
Wood, Shaffer Eisler, for appellants.
Jeroloman Arrowsmith, for respondents.
The action is to recover brokerage on the sale of the lease and contents of the liquor store, No. 63 Nassau street, this city.
In November, 1894, the place in question was run by Joseph Kopetsky, who was anxious to dispose of it. He mentioned his purpose to David Hoexter, who called upon the plaintiffs and signed in his own name an agreement employing them to sell the place for $10,000 cash. Kopetsky did not pay his rent, and was dispossessed, and a chattel mortgage on the stock in the store held by Beadleston Woerz was foreclosed about December 9, 1894.
The defendant Boehm was one of the owners of the lease, and the codefendant, Coon, owned the fixtures in the place. Boehm was interested in protecting himself on the lease, and Coon in getting compensation for his fixtures. The plaintiffs called on Boehm after Kopetsky had been dispossessed, and asked him to sign a paper authorizing them to sell the place on commission. Boehm said he was not the sole owner of the place, that he had only an interest in the lease, but if they brought a man and introduced him and sold the place they would then get their commission; and he thereupon gave the plaintiffs a letter to Mr. Coon, who owned the fixtures.
Coon testified that Mr. Neumann, one of the plaintiffs, called upon him with the letter; that he (Coon) said he would be pleased to have the plaintiffs dispose of the property; that Neumann wanted to know the price, and Coon told him it was $6,000, but he would be pleased to get what offer Neumann could give; that Neumann said there was a commission, and Coon replied he was specific in all contracts, that he had had dealings in real estate, and had it understood with every broker that any man that procures a customer must introduce him, bring the party into his office and close the contract there.
While the plaintiffs had the property for sale under the Hoexter authority they advertised it, as a result of which they were waited upon by John E. Bartz, who in the latter part of December, 1894, purchased the property in the name of his wife for $4,500: Bartz was not introduced by the plaintiffs to the defendants; his name was not mentioned to them, nor theirs to him, until after the sale had been closed. The lowest price at which Bartz was offered the place by the plaintiffs was $6,000, and he said he dropped the matter as the price was too high; that about the latter part of December he found the place closed, and went downstairs into the restaurant kept by a woman named Fuchs, where he met a gentleman and inquired who the owners of the saloon and fixtures were; that he was directed to go to 45 Maiden lane, where he would find out who the owners were; that he went there and saw the defendant Boehm; and that his interview with Boehm there led to the sale.
While it is undoubtedly true that the plaintiffs first directed Bartz' attention to the place, it is equally true that they did not introduce him to either of the defendants or even disclose his name as their customer, and so did not perform the condition upon which their brokerage was made to depend. The only proposed purchaser whose name was mentioned to the defendants by the plaintiffs was a Mr. Kramer of Hoboken, who never presented himself.
The brokers did not bring the vendors and purchaser together or cause a meeting of minds upon the subject-matter and terms. The negotiations opened by the brokers did not continue uninterruptedly to a culmination; on the contrary, Mr. Bartz testified that he dropped the matter because the price named by the brokers was too high. The sale was not consummated until some weeks afterward, and then on different terms, and it was brought about by the parties themselves in the accidental manner before described. That it was consummated in good faith is proved by the fact that the defendants did not know they were dealing with a customer of the plaintiffs. In some respects the case resembles Baker v. Thomas, 12 Misc. 432, in which a recovery for brokerage was reversed.
There are cases holding that the only conditions precedent to a right to recover brokerage are the original discovery of the purchaser and the starting of the negotiations by the broker and a final closing of the bargain by or on behalf of the principal (Stillman v. Mitchell, 2 Robt. 523); that the broker need not introduce the purchaser to the owner, nor the owner be notified that the buyer is the broker's customer (Lloyd v. Matthews, 51 N.Y. 124; Sussdorff v. Schmidt, 55 id. 322; Hanford v. Shapter, 4 Daly, 243; Levy v. Coogan, 16 Daly, 137); and these cases are controlling where the negotiations continue uninterruptedly to a successful conclusion, except when the parties have, as in this instance, made the right to brokerage conditional upon the personal introduction of the purchaser by the broker before a sale is consummated. The plaintiffs having, according to the finding of the justice, assented to this condition precedent, cannot now complain, for they must recover according to the terms of their employment or not at all.
As was said by the Court of Appeals in Sibbald v. Iron Co., 83 N.Y. 383, a broker "may have created impressions which, under later and more favorable circumstances, naturally lead to and materially assist in the consummation of a sale; he may have planted the very seeds from which others reap the harvest; but all that gives him no claim. It was part of his risk that failing himself, not successful in fulfilling his obligation, others might be left to some extent to avail themselves of the fruit of his labors."
The judgment must be affirmed, with costs.
DALY, P.J., and BISCHOFF, J., concur.
Judgment affirmed, with costs.