#### Louis Sanders, Respondent, *v.*Christian H. Schultheis, Appellant.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Brokers — commissions — contracts — evidence.

Plaintiff, an attorney, in company with a client noticed a “ For Sale” sign on certain property which was shown to them by a broker having it in charge, and after the client had made a deposit he and plaintiff were given the. name and the address of the owner. In an action to recover a broker’s commission for effecting the sale, plaintiff testified that, at a meeting in his office held by appointment where the terms of sale were arranged, he first asked defendant for a commission and that defendant replied that it would be all right but that he would have to pay *242his own broker. Plaintiff further testified that at the next meeting where the contract of sale, from which a provision for a stated commission to plaintiff "was stricken out, was signed, on asking defendant for a commission he was told that it would be all right but that he would have to fix it up with defendant’s broker. Defendant denied that he ever promised commissions to plaintiff and testified that he told him that any commission to him must come from defendant’s broker. Held, that plaintiff was not entitled to recover upon the theory of an express agreement by defendant to pay the commissions and that the circumstances did not disclose any facts from which plaintiff’s employment, as broker, could be implied.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, eighth district, entered in favor of the plaintiff after a trial by the court without a jury.

Charles C. Suffren, for appellant.

Samuel Greenbaum, for respondent.

Page, J.

This is an action for broker’s commission upon the sale of real estate. The plaintiff is an attorney with offices in Manhattan borough. ■ On Decoration Day, 1912, he went to Brooklyn with a friend and client named Kahn to assist him in purchasing property. They noticed a “For Sale ” sign on some houses which attracted their attention and, pursuant to the directions on the sign, applied to one Hyman, in the neighborhood, for particulars. They were shown the property by Hyman, liked it, and Kahn placed a deposit of ten dollars with Hyman. Hyman told them the name and address of the owner.

Some days later the defendant and the plaintiff met by appointment at the plaintiff’s office and arranged the terms ©f sale. The plaintiff states that at this meeting he first asked the defendant for a commission and the defendant replied that it would be all right but also said he would have to pay something to Hyman. The plaintiff then testified that at the next meeting when the contract was signed he asked the defendant for $10.0 commission and was told that it would be all right but he would have to fix it up with *243Hyman. A contract of sale was prepared by the plaintiff containing a provision for $100 commission. This provision was objected to by the defendant and was stricken out. The defendant in his testimony denies that he ever promised a commission to the plaintiff and says that he told him to make his arrangements with Ml. Hyman, that Mr. Hyman had charge of the property and whatever brokerage the plaintiff received must come from Mr. Hyman who was the .broker in the transaction.

The evidence is clearly insufficient to support a recovery upon the theory of an express agreement by the defendant to pay the commission. There is nothing to substantiate it but the testimony of the plaintiff himself which is extremely vague on this point, being mainly to the effect that the defendant “ would make it all right.” The surrounding circumstances make it extremely improbable that any promise was intended, especially the fact that the defendant strenuously opposed a provision for commission in the contract of sale and insisted upon its being stricken out. It is not claimed that the plaintiff was engaged to sell the property; on the other hand it appears that Hyman was the defendant’s agent and broker for that purpose. Neither do the attending circumstances disclose any facts from which an employment of the plaintiff as broker could be implied. In the entire transaction he was acting for the purchaser as his attorney and agent in procuring the property and the mere fact that he was so acting did not impose a duty upon the defendant to either repudiate the transaction or pay him a commission. Southack v. Ireland, 109 App. Div. 45; Brady v. American Machine & Foundry Co., 86 id. 267; Miller v. Waclark Realty Co., 139 id. 47.

The judgment appealed from is clearly against the weight of evidence, and should be reversed' and a new trial ordered, with costs to appellant to abide the event.

Seabury and Lehman, JJ., concur.

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