Harry Denton, Appellant, v. William J. Abrams, Respondent

Harry Denton, Appellant, v. William J. Abrams, Respondent. Second Department, June 21, 1907. Principal and agent—broker’s action for commission—facts not showing employment—trial—nonsuit. Action to recover commissions on the sale of real estate. The plaintiff, engaged in an endeavor to sell lands for his mother, found a person willing to purchase if he" could also get part of adjoining lands owned by the defendant. The plaintiff introduced the customer to the defendant and the two latter came to an agreement and both pieces of land were sold. The plaintiff never mentioned the subject of commissions to the defendant, nor claimed to be his agent or broker until after the sale. Held, that the plaintiff was not entitled to'recover from the defendant. When a plaintiff makes no case the trial judge nfay nonsuit on his own motion. Hooker, J., dissented, with memorandum. Appeal by the plaintiff, Harry Denton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡Nassau on the 9th day of June, 1906, ■ upon the dismissal .of the complaint by direction of the court at the close of the plaintiff’s: case upon a trial at the ¡Nassau Trial Term. The action was to recover a commission for the sale, of real estate. Elvin N. Edwards, for the appellant. R. & A. H. Seabury, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff called no witness, and the' nonsuit was on his own evidence., He testified that he was trying to., sell his mother’s land, but the proposed buyer would not make a contract to purchase it because it was not large enough' for the purpose he wanted it for. The plaintiff -then 'suggested that he might also, get for him a part o.f the land adjoining, which was owned by the defendant, and tin that case the proposed purchaser said he would buy. The plaintiff then saw the defendant and' asked him if he would sell his land," and informed him he had a customer for it.- The defendánt said he would sell for $500 an. acre. The plaintiff introduced .the customer for his mother’s land.! to the defendant, and the two latter conferred together and agreed upon the price of $450 an acre, and the customer.to.dk title .to both pieces. There was in this no employment of .the plaintiff by the defendant. The plaintiff never mentioned, a commission to the defendant, or claimed to be'his agent-or broker, until after title was-passed. That the plaintiff-was employed by.' or acting in the interest of the purchaser is as consistent, with, the facts-as that he was employed by the defendant. That the learned trial judge non-suited on his. own motion is not open to criticism. A trial judge is not in leading strings by counsel. If the plaintiff makes no case a trial judge is not. compelled to waste the time of the court .and others — keep people waiting—■while he listens to evidence which is wholly unnecessary. ..The judgment should be affirmed. Hirschberg, P. J., ¡Rich and Miller, JJ., concurred'; Hooker, J., read for reversal.' [DISSENT — Hooker, J.' (dissenting):] Hooker, J.' (dissenting): The plaintiff was a real estate broker and went to defendant and asked him if his property was for sale, as he thought he knew a customer who might buy it. • Defendant told, his price and plaintiff said he would bring around the customer as "soon as possible. Defendant said, “ Go ahead.” Plaintiff brought him around, the sale was consummated in every way, the plaintiff was the procuring cause, and there is no dispute as to the reasonable commissions. Against the defendant’s wish, the court granted a nonsuit. I agree with the counsel who tried the case for the parties, and disagree with the learned court. There was a contract of employment. Plaintiff, a real estate broker, asked the owner if his property was for sale, said he knew a customer and when advised the property was in the market- and what price was wanted, said he would bring the customer, and the defendant accepted this offer to enter into a contract of employment "by his words, “ Go ahead.” The judgment should be reversed. Judgment affirmed, with costs.