SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. engagement, as conceded by his counsel upon the oral argument, was to furnish a horse and wagon to the city and to drive the same for the sum of three dollars and seventy-five cents per day. It was within the province of those in charge of the department to terminate such a contract at any time in accordance with its terms. The relator's application for reinstatement is based upon section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270), under the claim that he is an honorably discharged exempt fireman; but it is evident from the nature of his engagement that his relations with the municipality are purely contractual, involving the use of the horse and wagon as well as his own services at a lump sum per diem, and that he is, therefore, not, within the meaning of the section cited, a "person holding a position by appointment or employment."

The order should be affirmed, with ten dollars costs and disbursements.

BARTLETT, WOODWARD, JENKS and HOOKER, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

GEORGE METCALFE, Respondent, v. LOUIS GORDON and Others, Appellants.

Real estate broker's commissions — effect of an admission by his principal that he was entitled to them - his failure to disclose the name of his customer · -action of the judge in denouncing a witness' conduct and in asking a series of questions of him. In an action brought by a broker to recover commissions upon a sale of real estate, evidence that subsequent to the sale the defendant admitted that the plaintiff was entitled to his commissions, is sufficient to establish the plaintiff's employment and that he was the procuring cause of the sale and that the sale was effected upon terms and conditions which were within the scope of the employment.

The fact that, previous to the sale, the broker did not disclose to his client the name of the party who subsequently purchased the property, although he did disclose to his client a description of the purchaser, has an important bearing upon the determination of the question whether the broker was the procuring cause of the sale, but is not necessarily controlling upon that question.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

When the action of the judge presiding at a jury trial, in denouncing as reprehensible the conduct of a witness in a matter to which he had testified and which had no direct bearing upon the main issue, does not constitute prejudicial error, considered.

In view of the great weight attached by jurors to expressions from the bench, harsh remarks about the motives of witnesses may not be generally commended; every unguarded expression of opinion by the trial judge on a question of fact during the trial is not, however, subject to exception as invading the province of the jury.

A judgment will not be reversed because of the action of the trial judge in asking a series of questions of the witnesses examined, where this was done without objection or exception and from an impartial desire to elicit the truth.

APPEAL by the defendants, Louis Gordon and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 20th day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk's office on the 27th day of March, 1902, denying the defendants' motion for a new trial made upon the minutes.

Jacob Gordon [Arthur N. Harris with him on the brief], for the appellants.

Louis S. Phillips [George J. Greenfield and Arthur D. Greenfield with him on the brief], for the respondent.

HIRSCHBERG, J.:

The plaintiff's action is for a broker's commission on the sale of real estate. The complaint alleges that the plaintiff, on the defendants' employment to procure a purchaser of the Pavilion Hotel at or near St. George in the borough of Richmond at a price acceptable to them, did procure Charles Rosenberg as such purchaser. The answer admits the ownership of the property by the defendants and its sale to Rosenberg, and denies every other allegation of the complaint.

The evidence given on the trial was sufficient to justify the jury in concluding that the plaintiff was employed by the defendants to find a purchaser for the property at a price satisfactory to them, he to receive a commission of two and a half per cent unless the price received was $47,000 or over, in which event he was to receive $2,500. The asking price was to be $50,000. The employment APP. DIV.-VOL. LXXXVI.

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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. was on the 2d day of November, 1900, and on the twenty-seventh of that month the plaintiff saw Rosenberg and undoubtedly interested him in the property with a view to a purchase, and reported him to the defendants as a prospective purchaser by description but not by name. He also informed Rosenberg of the names of the defendants as the owners of the property, but without giving him their address. On December 11, 1900, the defendants contracted with Rosenberg for the sale of the property to him at the price of $30,000. On learning a few days afterwards that the property had been sold, the plaintiff called on the defendant Gordon, who appears to have had charge of the matter on behalf of the defendants, and the following conversation was had, according to the plaintiff's testimony: "I told Mr. Gordon that Mr. Rosenberg had informed me that Mr. Weil had purchased the Pavilion Hotel property. He said that is not true; the property has been purchased by Mr. Rosenberg. I told him, Mr. Rosenberg is my customer. He said: 'You don't say so.' I told him: 'My impression is I told you that Mr. Rosenberg was my customer, but I now tell you he is.' After talking over the matter Mr. Gordon said: 'I think, Metcalfe, you are fairly entitled to the commission. I have not paid it yet, but some broker (who) is making the exchange between Prentiss and myself, is the one who is getting the commission in this sale to Rosenberg, and if it comes to a question of paying two commissions I will put them in the hands of the Court and let the Court decide who is entitled to that commission.' I said: Mr. Gordon, that is a very fair proposition, and I am willing to abide by it.""

It was undisputed upon the trial that the defendants did employ the plaintiff to procure a purchaser and that he was the first to call Rosenberg's attention to the property, and this conversation in which the defendant who negotiated the employment admitted that on a sale to Rosenberg at the price of $30,000 the plaintiff was entitled to his commission, was sufficient to warrant the jury in finding that the plaintiff was not limited to finding a purchaser at $47,000, but that the employment was as set up in the complaint. This is the logic of the decision in Ware v. Dos Passos (162 N. Y. 281), followed by this court in Palmer v. Durand (62 App. Div. 467). The admission is evidence supporting the plaintiff's cause of action, and being sufficient to establish both the fact of the broker's

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

employment and that he was the procuring cause of the sale, must be deemed sufficient to establish that the sale was effected upon terms and conditions which were within the scope of the employment. The defendants claimed that the sale was made through the agency of two brokers, Fred W. Janssen and Goodman Freedman, to each of whom the defendants paid a commission with full knowledge, as the jury may have found, that the purchaser was the plaintiff's customer. It is unnecessary to recite the circumstances in detail by which these agents and Rosenberg came into contact. The facts presented a fair issue to the jury on the question of procuring cause independently of the admission referred to; this issue was fairly submitted to them by the learned trial justice, and in view of the two decisions herein before cited, which expressly hold that an admission by the seller that the broker is entitled to the commission is sufficient proof that he has been the procuring cause, the finding of the jury in the plaintiff's favor cannot be disturbed. The fact that the plaintiff did not inform the defendants that Rosenberg was his customer is not necessarily controlling. This was held in Lloyd v. Matthews (51 N. Y. 124). The court said (p. 132): "It is sufficient to entitle a broker to compensation that the sale is effected through his agency as its procuring cause; and if his communications with the purchaser were the cause or means of bringing him and the owner together, and the sale resulted in consequence thereof, the broker is entitled to recover." And on the same page, referring to a refusal to charge that the seller is entitled to know that the party with whom he is dealing is a customer of the broker if such be the fact, the court said: "The sixth proposition is not correct. It is to be understood, in the connection in which it is presented, as declaring that, although a party is brought, through the agency and instrumentality of the broker, into a negotiation and dealing with the owner, which actually results in a sale, yet the broker is not entitled to compensation, unless it is made known to the owner that the purchaser is his customer. That is not true. It is sufficient that the purchaser is in fact such customer." The case of Sussdorff v. Schmidt (55 N. Y. 319) is to the same effect. And in Wylie v. Marine National Bank (61 N. Y. 415) the doctrine was repeated, the court saying (p. 416): "It is not indispensable that the purchaser should be introduced to the owner

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. by the broker, nor that the broker should be personally acquainted with the purchaser. But in such cases it must affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker. If he was the producing cause of the sale, his right to compensation will not be affected by the circumstance that the owner was ignorant of it at the time he entered into the contract with the purchaser. (Sussdorff v. Schmidt, 55 N. Y. 320.)"

It is not questioned but that the fact that the owner does not know that the purchaser is the customer of his broker is an important one, having a proper bearing upon the determination of who in fact was the procuring cause of a sale, and it would be easy to suggest circumstances in which the fact might be deemed controlling; but in this particular case the evidence not only sustains the finding of the jury that the plaintiff was the procuring cause, but in view of the speedy sale to Rosenberg after the plaintiff had called his attention to the property, almost tends to excite a suspicion that some one connected with the consummation of the transaction was inspired by a desire to deprive him of the benefits of his employment.

The fact was developed that Rosenberg paid to Janssen and Freedman each the sum of $1,000 as a sort of bribe to induce them to procure the sale of the property to him at the sum of $30,000, and the fact that the learned trial justice remarked when Freedman confessed the fact while on the stand, "You ought not to have had a commission from anybody. A broker who has no more business honesty than that," to which remark the defendants excepted, is urged in support of the claim that the court was hostile and unfair in his attitude towards them. Just previous to the remark the witness had testified that the property had been placed in his hands to sell for $50,000, and in effect that because of Rosenberg's offer of $1,000 he had tried to get it for him at $30,000. The court then asked him the question: "Do you mean to say that you think that is the sort of good faith that a broker owes to a man who puts his property in his hands to sell for him, when he tries to get it from the seller as cheap as he can?" and the witness answered: "It is not good faith, I don't think." Whatever criticism the remarks of the court may legitimately invite, I can see no evidence of hostility or unfairness to the defense that the plaintiff was not the