H. G. Waters & Son, Respondent, v. Mark Rafalsky, Appellant

H. G. Waters & Son, Respondent, v. Mark Rafalsky, Appellant. Fourth Department, November 17, 1909. Principal and agent — broker’s action for commissions — facts not warranting recovery. Where a broker employed to sell lands merely called the attention of a prospective purchaser to the property without notifying his principal and without taking further steps in the matter, he is not entitled to commissions if the owner, five or six months afterwards, sells the land to the customer without knowledge of the broker’s negotiations. Appeal by the defendant, Mark Rafalsky, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of January, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes. Irving L. Fisk, for the appellant. Leonard W. Gibbs, for the respondent. [MAJORITY — Kruse, J.:] Kruse, J.: The judgment against the defendant, from which this appeal is taken, is founded upon a verdict for brokers’ commissions, claimed to have been earned by the plaintiff for effecting the sale of certain real property belonging to the defendant, and placed upon the market for sale with the plaintiff as brokers. The property was so placed with the plaintiff in January, 1906, at the selling price of $200,000, with a commission of two and one-half per cent to the plaintiff. In the following April or first of May the plaintiff called the attention of one Maxon W. Tifft to the property, giving him the price and terms of sale, and furnishing him the amount of rent received therefrom, but nothing more was done by the plaintiff to induce Tifft to purchase or to bring about an agreement between him and the defendant. Indeed, the plaintiff did not even call the attention of the defendant to Tifft as a prospective buyer until the following October, after negotiations had been concluded and an agreement made directly between the defendant and Tifft for the sale of said property. On the 27tli day of September, 1906, an agreement in writing between the defendant and Tifft was made for the sale of said' property at the sum of $187,000. Tifft bought the property for his mother and the deed was made to her October 15, 1906. There is no evidence that the defendant knew or had any reason to believe that Tifft had seen the plaintiff about the property or that the plaintiff had ever called the attention of Tifft to the property until after the defendant had agreed to sell the property to Tifft. The learned trial court correctly held that the plaintiff must establish that it was the procuring cause of the sale, and so instructed the jury. We, however, are of the opinion that the evidence was insufficient to submit that question to the jury. The mere fact that the property was sold to the same person to whom the plaintiff had, five or six months previous to the sale, given the information, without informing the defendant or doing anything further to effect a sale, is not sufficient to entitle the plaintiff to commissions. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. J udgment and order reversed and new trial ordered, with costs to appellant to abide event.