#### John P. Kirwan, Respondent, *v.*Charles T. Barney, Appellant.

(City Court of New York, General Term,

April, 1899.)

Brokers — When commissions are earned — Contract not binding a club to the purchase of realty.

Where a broker seeks to recover commissions, for procuring an incorporated club as the purchaser of the real estate of a client, he must show that the person who proposed to sign the contract in behalf of the club was' duly accredited agent, and further that the club was financially able to complete. A club constitution which

merely provides that its" board of trustees “ shall have the control and management of its property, funds and affairs ” affords no authority to the trustees, nor to a site committee appointed by them, nor to its chairman, to sign a contract for the purchase of real estate and bind the club thereby. .

Appeal from a judgment in favor of plaintiff, entered upon a verdict.

John V. Bouvier, Jr., for appellant.

Deyo, Duer *&*Bauerdorf (Robert 0. Beatty, of counsel), for respondent.

Fitzsimons, Ch. J.

This is an action brought by plaintiff, who. is a real estate broker, to recover commissions for the alleged procurement of a purchaser of certain real estate owned by the defendant in this city, and at his request. Under the issues framed by the .pleadings the duty rested upon the plaintiff to establish that the proposed purchaser was able, ready and willing to purchase the property' upon the terms named by the vendor. 137 N. Y. 504.

In this instance the proposed purchaser was the “ West End Club,” a duly incorporated body.

The plaintiff claims that that body acted in this matter through a duly appointed committee, one Mr. Marx Arnheim being the chairman thereof, and that he offered to sign the contract of sale as such chairman; but the defendant refused to so accept his signature, insisting that Mr. Arnheim should sign as an individual, thus assuming individually, and not as the representative of the club, *182the obligation of performing the conditions of the contract. Assuming this to be true, the inquiry .is presented — Was Mr. Arnheim the duly appointed agent of the club to purchase said premises? Mo doubt, the defendant has the right to insist that. the. proposed signer should be a responsible and duly, accredited agent of the club.

It was the duty of the plaintiff to show that he was selected and" "appointed in the manner prescribed by law and by the constitution and by-laws of said club. This the plaintiff endeavored to do by showing that at an alleged meeting of the club, held on May 15, 1895, the following resolution was adopted:

“ That the club purchase the premises for its club building on the northwest corner of Central Park west and Seventy-fifth street, at the price of $105,000. And the president of the club is hereby directed to negotiate for such purpose and enter into a contract therefor, on Such terms as he shall consider wise and for the best interests of the club, and employ counsel for the examination of the title thereto, and thereafter shall receive in his own name as president as aforesaid, a warranty deed with full covenants conveying to him the said premises as such president and to his successors. Carried.”

This'was- adopted at a special meeting of the club called for the purpose of receiving a report from the site committee concerning such purchase. Yet- it does not appear that the members had notice of such special meeting, nor does it appear that enough members were present to constitute a quorum of such a meeting — simply the declaration of the secretary that members responding, therefore a quorum was declared to be present. In our judgmen this testimony failed to show that "the meeting referred to was £ duly organized meeting, and that its proceedings were binding upon the club. In our judgment said meeting, judging from tin testimony submitted, was a nullity, but conceding for argument’ sake that the resolution was duly and regularly, adopted, yet th< testimony shows that it was never acted upon.

As directed by said resolution, the president (Mr. Isaac Frank never offered to sign the contract of sale, nor was any attemp apparently even made by him or any other person in, his hehal to act under the resolution referred- to. It was ignored. Th resolution under which Mr. Arnheim and his brother committeeme: acted' was one adopted at a meeting of the board of trustees hel May 26, 1895, reading as follows:

*183“ That the chairman of the site committee be authorized to buy the lots at $105,000, with the understanding that he obtains a second mortgage- of at least $25,000 on the original proposition,” -under and by virtue of the resolution, Hr. Arnheim as chairman of the site committee, offered to sign the contract of sale. Hr. Frank never pretended or offered to act under the -resolution passed by the club. Thus, is presented the question by what authority was the club’s resolution set aside, and that of the trustees acted upon?

Apparently this -course of procedure was adopted by the trustees upon the assumption that they had the power to do so under the following provisions of the constitution:

> “ Article I.

> “ Section 4. It shall have a board of trustees consisting of eleven members, including the officers. The board of trustees shall have the control and management of its property, funds and affairs, pursuant to law, and in accordance with its Constitution and By-laws.

> “Article VI.

> “Powers of the Board of Trustees.

> “ Section 1.- The board of trustees shall have cognizance of and determine all matters affecting the welfare o"f the club, authorize and control all the expenditures, and all questions and differences which affect the internal interests of the cliib shall be determined by them. It shall adopt a corporate seal, and may alter the same at its discretion.”

According to my understanding of the provision just quoted, the doings of the trustees at said meeting were unauthorized by the constitution and was an risurpation of authority. They simply had the'right to control and manage the property of the club, its funds and affairs. -These provisions surely conferred upon them no authority to acquire real estate for the club and charge the purchase thereof against it, or to authorize a committee to do so.

Thus, it appears to us that the plaintiff has failed to show that he'had produced a purchaser against whom the defendant could successfully prosecute an action for specific performance because, as above argued, the person he did procure (Hr. Arnheim) was not a duly accredited agent- of the club and one whose acts would bind it.

*184Besides the testimony fails to show'affirmatively, that the club was financially able to. carry out the terms of the intended contract, which required.the payment of $7,500 at the,signing of the contract and $7,500 additional upon the delivery of the deed.

We think that the plaintiff failed to prove that Mr. Arnheim had authority to act. Also that he failed to prove that the *“*West End Club ” was financially able to comply with the terms of the proposed contract, and for these reasons he has failed to establish a cause of action against defendant. Another motion made to dismiss the complaint should have been granted. However, these omissions may be supplied upon a new trial.

Upon the whole evidence we think that plaintiff did'not prove a cause of action. The judgment must be reversed, a new trial ordered, with costs-to the appellant to abide event of action.

Hascall, J., concurs.

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