Herbert J. Callister, Appellant, v. John Wichern, Respondent

Herbert J. Callister, Appellant, v. John Wichern, Respondent. Second Department, November 10, 1911. Principal and agent — broker’s action for commissions. Where in an action by a real estate broker to recover commissions for procuring an exchange of lands it appears that the plaintiff procured a party with whom the defendant entered into a contract, it is error to dismiss the complaint on the merits upon the theory that the plaintiff had failed to establish that the party with whom the defendant contracted was the attorney in fact of the owner of the land he contracted to exchange as he had represented himself to be when he. signed the contract. The defendant, having decided to enter into a contract with knowledge ■that the other party claimed to be only the attorney in fact of the owner thereby relieved the plaintiff from responsibility in that respect. Appeal by the plaintiff, Herbert J. Oallister, from- a judgment of the Munieipal Court of the city of Hew York, borough of Brooklyn, in favor, of the defendant, rendered on the 12th day of May, 1911, dismissing the complaint upon the merits. Ralph B. Ittelson, for the appellant. William J. Bolger, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff alleged in his complaint that he was employed by the defendant for the purpose of procuring an exchange of property; that the plaintiff performed the service by producing one Annie Maguire, through Stephen Maguire, her attorney in fact, who entered into a written contract with the defendant for the exchange of property contemplated by the contract of employment. The defendant does not question the employment, and the evidence clearly establishes that the plaintiff did produce a party with whom the defendant entered into a contract for the exchange of properties, but the learned trial court dismissed the complaint upon the merits, upon the theory that the plaintiff had failed to establish that Stephen Maguire was the attorney in fact of Annie Maguire in making the contract for the exchange of properties. We are of the opinion that the learned trial court erred in this determination; the defendant himself elected to.accept the responsibility of entering into a contract with the person produced by the plaintiff, and in the absence of fraud, which is not alleged, there can be no doubt that the plaintiff had done all that his employment required of him. If the defendant was not satisfied with the party produced, he might, in good faith, have refused to contract, but having decided to enter into a contract he relieved the plaintiff of responsibility, and the latter is entitled to his compensation. ■ The judgment appealed from- should be reversed and a new trial ordered, costs to abide the event. Jenks, P. J., Burr, Thomas and Carr, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.