Schmidt v. Ungrich

The action was brought to recover broker’s commissions at the rate of 1 per cent, upon a sale or exchange of real property, as well as of a mortgage thereon, for the amount of $136,000. The answer denied that plaintiff was the procuring cause of the sale. There was proof of an employment, and a sale, as well as of the activities of other brokers. The evidence as to who was the procuring cause of the sale was conflicting.

The court properly charged that plaintiff was entitled either to a full commission of 1 per cent, or to nothing. No other issue is raised by the pleadings, and plaintiff does not support his recovery on any other theory. But the court nowhere charged the jury that plaintiff could not recover unless he was the procuring cause of the sale, and it refused to charge that plaintiff must show that it was his services that induced the sale. Defendant excepted. The court also charged that the jury need not concern themselves with what a broker is compelled to do in order to earn his commissions. Defendant excepted. Unless a real estate broker is the procuring cause of sale, he earns no commission thereon. Phinney v. Chesebro, 87 App. Div. 409, 412, 84 N. Y. Supp. 449; Hamilton v. Gillender, 26 App. Div. 156, 157, 49 N. Y. Supp. 663.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.