Byrne, Bowman & Forshay, Inc. v. Cella

Respondent has recovered judgment for the entire brokerage commission against appellant, who owns hut one third of the real property for which respondent has found a prospective purchaser. Unless appellant untruthfully held himself out to respondent as authorized to retain a broker on behalf of the other owners, or acted for undisclosed principals, respondent could recover against him but one third of the commission. The action was erroneously presented to the jury as though the evidence established as matter of law that respondent falsely held himself out as authorized to employ a broker on¡ *851behalf of the other owners, or attempted to bind them as though they were undisclosed principals. The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff-respondent stipulates to accept one third of the amount of the verdict, with interest thereon from the date of entry of the judgment, and costs, in which event the judgment as so modified is affirmed, without costs of this appeal. Present — Peek, P. J., Glennon, Dore, Van Voorhis and Shientag, JJ.; Glennon, J., dissents and votes to affirm. Settle order on notice.