William M. Burrows, Respondent, v. Standard Oil Company of New York, Appellant

William M. Burrows, Respondent, v. Standard Oil Company of New York, Appellant. First Department, December, 1905. Sbipbroker—failure to show employment to sell boat or that sale was . made by sudh broker. In an action by a sbipbroker for commissions for procuring a sale of defendant’s boat to the government, ¡t was shown that, learning that the government was looking for vessels of a certain class, the plaintiff went to defendant and suggested a sale of said boat; that defendant's agent, after stating that he did not know whether defendant wished to sell, merely gave plaintiff particulars of the boat; that defendant’s boat had previously been on the list of boats desired by the government and which it had the right to take because of a state of war and was only sold by defendant under, protest. Eeld, that there was no proof of plaintiff’s employment or that the sale had been in fact made by him. Appeal by the defendant, the Standard' Oil Company of ¡New York, from a judgment of 'the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 17th day of March, 1905, upon the verdict of a jury, and also from an order entered in said clerk's office on the 16th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes. Everett Masten, for the appellant. Harcourt Bull, for the respondent. [MAJORITY — Houghton, J.:] Houghton, J.: The plaintiff is a sbipbroker and brings this action to recover commissions upon a sale by the defendant of the steam tug Atlas to the United States government during the Spanish war. The judgment must be reversed, not" only because the plaintiff failed to establish that he was employed'by the defendant to make the sale, but also upon the ground that he was not the procuring cause of the sale. The evidence discloses that plaintiff learned that a representative of the government was looking for'vessels of a certain class, and he thereupon went to the agent of defendant and suggested a, sale of the tug Atlas, and the agent informed him that he did not know whether the company wanted to sell any of its vessels' or not, but directed one of his clerks to give the plaintiff the particulars of the boat hnd of her movements. This was not an employment of the plaintiff to sell the boat. . Besides, subsequently, the representative of the government notified the defendant'that for some, time prior to the interview of plaintiff with the defendant’s agent, the. government had had the tug Atlas on its list of boats, tó be taken, in case of necessity, for use in the war. The' defendant protested that it could not spare its boat,- but it being insisted that it . should, finally, fixed the price and spld it. Even if the plaintiff had been employed’ to make the sale, it was not in fact made through or by him. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. O’Brien, P. J., Patterson, McLaughlin and Clarke, JJ., ■ concurred. - • Judgment and order reversed, new trial prdered, costs to appellant to abide event.