#### Charles E. Bonwell, Respondent, *against*John T. Howes, Appellant.

(Decided December 3rd, 1888.)

An agent to sell real estate has not power, without special authority, to employ a broker to make the sale, and the principal is not liable for commissions of a broker under such employment not authorized or ratified by him.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon the verdict of a jury.

*44The action was brought by plaintiff,, as assignee of one Rogers, to recover commissions of Rogers as broker on an exchange of property of defendant with one Haberman. At the trial, it appeared that defendant employed his father, Reuben W. Howes, an insurance and real estate agent, to sell or exchange defendant’s property, and that Reuben W. Howes employed said Rogers, who was also broker for Haberman, and that Rogers effected the exchange. Defendant had no knowledge of the employment of Rogers by Reuben W. Howes until after the exchange, and never had any communication with Rogers, nor had he given Reuben W. Howes any special authority to employ a broker. At the close of the testimony, defendant moved to dismiss the complaint, on the ground that no authority to employ Rogers was shown. The motion was denied, and the jury found a verdict for plaintiff. - A motion by defendant for a new trial was denied, and judgment for plaintiff was entered on the verdict. From the judgment and the order denying his motion for a new trial, defendant appealed to the General Term of the City Court, which affirmed the judgment and order; and from this judgment defendant appealed to this court.

*R. H.*Underhill, for appellant.

*Edwin L.*Kalish, for respondent.

Van Hoesen, J.

The motion for a dismissal of the complaint ought to have been granted. It appeared that the defendant never employed the plaintiff’s assignor, never knew of such employment until after the exchange of the two pieces of property had been effected, and never authorized or ratified such employment. Of these facts there cannot be any question. The evidence adduced by the plaintiff showed that Rogers, the plaintiff’s assignor, knew that Reuben W. Howes was acting as the agent for his son, John T. Howes, the defendant, in selling the Tenth Avenue property, and that not until after the property had been exchanged for the Haberman property in Fourth Avenue did Rogers ever have the slight*45est communication, directly or indirectly, with the defendant. There is no testimony to prove that the defendant was previously aware of Rogers’ employment. Upon this state of facts the court should have granted the motion to dismiss the complaint. Reuben W. Howes, who employed Rogers, was himself an agent to sell, and as such he had no right or power to employ a sub-agent, or to bind the defendant by an agreement that the sub-agent should receive a commission *(Atlee*v. Fink, 42 Am. Rep. 385.)

It was said by one of the justices of the City Court that the testimony established the fact that it was customary in New York to employ brokers to sell property. That is true, but irrelevant, because the question here is, Has one agent any authority to employ another ? No proof on that subject was offered.

I understand the rule to be that, “ except where necessity requires or a known usage of trade justifies the employment of sub-agents, an agent whose duties involve personal trust and confidence, and the exercise of judgment and discretion, cannot, without authority from his principal, delegate to another the confidence and discretion reposed in him. He may employ another to perform mere mechanical acts, but nothing else *(Lewis*v. Ingersoll, 3 Abb. Ct. App. Dec. 60).

The jury probably regarded Reuben W. Howes as the real owner of the property, and believed that they were doing substantial justice in requiring the nominal owner, who holds real estate in his name, to pay the debt that the real owner contracted. .But the testimony shows that Rogers knew that Reuben W. Howes was dealing in the character of an agent. IE he wished to hold the principal he ought to have ascertained that Reuben had authority to employ a sub-agent, or else he should have required some instructions from, or had some communication with, the defendant. Hard cases ought not to make bad law; and I am of opinion that it would be dangerous to permit one agent to employ another at the expense of the principal.

Upon a new trial it may be shown that the principal knew that Reuben W. Howes intended to employ, or had employed, *46a broker to assist him, and that he approved of the employment.

Larremore, Ch. J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.