(78 Hun, 547.)

#### RICE v. POST.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Principal and Agent—Compensation op Subagents—Who Liable.

"Where an agent to sell land employs a third person to procure a pin-chaser, without the knowledge of the owner of the property, such third person cannot recover his commissions from the owner, as an agent who employs another to perform his duties only binds himself to compensate the person employed.

*554Appeal from Monroe county court.

Action by Obed M. Rice against Jacob K. Post for broker’s commissions. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals.

Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

M. H. Briggs, for appellant.

Herbert Stull, for respondent.

DWIGHT, P. J.

The action was to recover a balance of commissions claimed to be due to the plaintiff on the sale of a block of buildings in the city of Rochester belonging to the defendant. One Bruff had been for many years the agent for the defendant to manage and care for the property, and to collect the rents. He was also at the time to which the evidence relates authorized to sell the property. The plaintiff had been for some time a tenant of the block. He always dealt with Bruff, and supposed that he was the owner of the property. He owed for rent of his apartments about $260, when Bruff engaged him to find a purchaser for the property, and agreed to pay him double commissions if he succeeded in finding a purchaser at the price of $14,000. He did find a purchaser whom he brought into communication with Bruff, and a sale or exchange of the property was effected, at the nominal price of •$14,000. Bruff allowed the plaintiff credit for the rent due from him, which the former asserted was as much as he owed him for commissions; while the latter claimed a balance of $260, still his due, for which he brings this action against the defendant. There is no-evidence that Bruff was in any manner authorized by the defendant to employ a subagent or broker to make a sale of the property, and of course none that he was authorized to contract for the defendant to pay double commissions for such service. There is no evidence that the defendant knew that the plaintiff was employed to or did render any service in connection with the sale; and the only evidence that he knew that the plaintiff was credited with the rent due from him, on his claim for commissions, was the admission, by the defendant’s answer, that he had paid the plaintiff the sum of $264.50. This admission affords no evidence of a ratification by the defendant of the contract made by Bruff, because there is no evidence that he ever knew before this action was commenced that any such contract had been made. The contract made did not purport to be the defendant’s contract, nor to be made for him; but was made by Bruff, and was understood by the plaintiff to be Bruff’s contract in his own behalf, and to bind no one but himself. The fault of the plaintiff’s action is that it makes choice of the wrong man for defendant. It is true that the defendant has had the benefit of the plaintiff’s services, but all that benefit he was entitled to from the services of the agent whom he had employed. If the latter has employed another to render the services which were due from him, he only obligates himself to compensate the per*555son employed. Carroll v. Tucker (Sup.) 21 N. Y. Supp. 952, and the cases cited. There were several exceptions to the charge of the court and refusals, which raise substantially the same questions as those presented by the motion for a nonsuit. For the error in denying that motion, and upon the exceptions referred to, the judgment and order appealed from must be reversed, and a new trial granted. All concur.

So ordered, with costs to abide the event.