Summary
In Priestley, the Second Department disagreed with a trial court's jury instruction and granted a new trial because the trial court "misrepresented a basic element of the law of broker-employer, namely, that where a broker is employed to sell property at a specific price and is unsuccessful, and the owner later begins or resumes negotiations with the broker's prospect in good faith and a sale results, then the broker is not entitled to a commission" (Id. at 708).
Summary of this case from E. Consol. Props., Inc. v. 5 E. 59 Realty Holding Co.Opinion
June 19, 1967
Judgment of the Supreme Court, Westchester County, dated November 2, 1966 and entered upon a jury verdict in the main action, and judgment of said court dated January 12, 1967 and entered upon the trial court's decision in the third-party action, reversed, on the law and the facts, and new trial granted as to all parties, with costs to abide the event. In our opinion, the trial court's instructions to the jury misrepresented a basic element of the law of broker-employer, namely, that where a broker is employed to sell property at a specific price and is unsuccessful, and the owner later begins or resumes negotiations with the broker's prospect in good faith and a sale results, then the broker is not entitled to a commission ( Wylie v. Marine Nat. Bank, 61 N.Y. 415; see, Salzano v. Pellillo, 4 A.D.2d 789). At bar, there was evidence that plaintiff, a real estate broker, was employed by defendant, Buildmaster, to sell the property in question for $300,000. Plaintiff claimed that the third-party defendant, Pine Hills, made an offer of approximately $225,000 and that this offer was communicated to Buildmaster. Both Buildmaster and Pine Hills denied this claim. In any event, about seven months after the alleged offer the property was sold to Pine Hills for $222,500. Plaintiff brought this action to recover a commission, alleging he was the procuring cause of the sale, and has recovered. We feel there was sufficient evidence of intervening factors or circumstances between the initial unsuccessful negotiations (assuming there were negotiations) and that sale upon which the jury could find that Buildmaster acted in good faith in resuming negotiations with someone who may, in fact, have been brought to its attention by plaintiff (see, Sibbald v. Bethlehem Iron Co., 83 N.Y. 378, 383-384). The charge to the jury indicated that, even assuming Buildmaster's good faith, plaintiff was entitled to his commission if, in fact, his employment contract was still in effect at the time of the sale. This constituted reversible error. Ughetta, Acting P.J., Hopkins and Munder, JJ., concur; Christ and Brennan, JJ., dissent and vote to affirm the judgments.