The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-04-07
Foss LOSES BIO COMMISSION.
Appellate Division Sets ABIDE s2B,-
900 Award Against N. Y. Central.

In reversing q verdict for $4,000 oh.
tanned by Archibald c. Foss. a real estate
broker. against the New York Central
Railroad Company for breach Of contract
for commissions the Appellate Division
OF the Supreme Court has divided three
to two on the question OF whether a
broker negotiating the sale Of property
can receive q commission from the seller
and at the same time make q contract TO
without disclosing such contract 20 the
purchaser. The majority OF the court held
that this IL legal. but presiding Justice
InGraham and Justice Mclaughlin do not
concur in this conclusion. The court was
unanimous. however In deciding that Foss
had no cause OF action.
The majority opinion. written by Justice
Laughlin. states that Foss sued under a
,erbal agreement alleged TO have been
made between him and the defendant IN
1905 through William II. Newman. then
president OF the New York Central, by
which he was to negotiate the purchase
OF seven parcels Of real estate at Wee
hawken known "a the King estate. which
was needed for terminal facilities by the
West Shore Railroad. He alleged that the
defendant agreed that II II purchased the
property Il would do 30 through him In
order that he might obtain the commits
sions. Foss brought about the sale Of
three OF the parcels and got his commits
sions from the sellers and the railroad
company made an agreement 70 aid him
to get the usual commissions for the re-
naming four parcels II they were bought
The railroad company bought the prop
erty from the owners directly and Foss
sued for breach Of contract
The defendant asked for the dismissal
Of the complaint on the ground that the
agreement held only so long IA Mr.. New
man remained president Of the company
and that he had been succeeded by Will
lam C.. Brown before the purchase was
made. The defendant also contended that
the agreement was against public policy
because the plaintiff led the owners 10
believe ne was acting solely In their in
forests IN endeavoring to obtain the high
est possible price for the land. while at
the same time he was assuring the de-
PENDANT that he was trying to procure
the property at rs low a price as pos
sibie and failed TO disclose to either that
ne was acting in the interest Of the other.
Justice LauRhlin ruled that tho cues
ton as 10 the plaintiffs good faith in
the transaction was submitted TO the
Jury and the decision OF the fury IN his
favor Is conclusive OF the court. Justice
Laugh,in said: II am Of opinion that
plaintiff had q right to make an agree
ment both with the defendant and with
the property owners provided ne dlu not
deceive the owners into thinking that he
was representing them"
The court found that after Mr. Brown
became president OF the def ndant James
Gore King. one OF the owners Of the
property, suggested that the remaining
four parcels would be sold for 81. 900. 200
provided there were no deductions for
brokers' commission. and in 1910 the
purchase was made through King. Jus
tice Laughiin. with Justices Clarke and
Scott concurring. voted TO reverse the
verdict on the ground that FosS agree
ment became invalid as soon as NJ New
man ceased 10 be president OF the New
York Central
In his dissenting opinion Presiding Jus
,ice Ingraham said
"a broker approaching tho owner OF
real estate with an offer 10 purchase the
property and making an agreement with
the owner that ne shall receive n commits
sion from the owner for his services in
selling the property assumes toward the
seller n position In which the utmost good
faith Il required on his part. The very
fact that he undertakes to act IN that
caracity imposes this ohl.ration upon him
and whether he gives up the name OF the
customer or not. II he II TO receive his
commission from the seller he cannot
place himself In a position antagon'st'c
to the sellers interes. and produce any
advantage from the purchaser without
atsc,os,np the t,,1e condition 20 tho seller"