Imágenes de páginas
PDF
EPUB

City and County of New York, affirming a judg- | derance must be overwhelming to induce a court ment of the Trial Term entered on a verdict to disturb the verdict of a jury. for plaintiff in an action to recover broker's commissions. Affirmed.

The facts and questions raised appear from the opinion.

Mr. Frank E. Blackwell, for appellant: It being uncontradicted that defendant was not the owner of the property in question, and that he disclosed to the plaintiff the true owner for whom he was agent, no right of action accrued against defendant.

Bonynge v. Field, 81 N. Y. 159, 160; Covell v. Hart, 14 Hun, 254; Bonynge v. Waterbury, 12 Hun, 534.

66

This is a case of a number of agents engaged in disposing of the Red Hook property. An | exchange was effected, and the question is: Which broker is entitled to the commission? The rule is well settled. Says Church, C. J., A person claiming a commission upon a sale of real estate must show an employment, and that the sale was made by means of his efforts or agency. "An owner may employ several brokers for the sale of the same property, and is, of course, only liable for commissions to the one who effects the sale. And although he employs one or more brokers, he may negotiate and sell the property himself, without liability to anyone for commissions."

[ocr errors]

Sussdorf v. Schmidt, 55 N. Y. 319, 321; See also Sibbald v. Bethlehem Iron Co. 83 N. Y. 378, 383; Briggs v. Rowe, 4 Keyes, 424,

Where negotiations are begun by a broker, but abandoned by him, and a sale is subsequently effected, either by the owner or a second broker to the same party, the original broker is entitled to no compensation.

Wylie v. Marine Nat. Bank, 61 N. Y. 415; Ludlow v. Carman, 2 Hill, 107 (This is a case directly in point); Chandler v. Sutton, and Bennett v. Kidder, 5 Daly, 112, 512; Briggs v. Rowe, 4 Keyes, 424.

The testimony of plaintiff that he was acting as broker for Streeter and the defendant, at the same time, defeats his right to recover in this case, unless previous to the consummation of the transaction he fully disclosed the fact of his agency to the defendant.

Morss v. Sherrill, 63 Barb. 21; Culver v. Avery, 7 Wend. 384.

The verdict must be entirely against the weight of evidence to justify the court in setting it aside. The questions of fact were presented to the jury-they have decided, and of these they were the judges.

Morss v. Sherrill, 63 Barb. 21; Culver v. Avery, 7 Wend. 384; Wallace v. Patterson, 29 How. Pr. 170; Clark v. Mechanic's Nat. Bank, 8 Daly, 481; Murphy v. Baker, 3 Robt. 4, 5; Tinson v. Welch, 7 Robt. 392; Hermann v. Kreppel, 8 Week. Dig. 177.

It is the province of the jury to weigh and determine conflicting evidence; and the court should not set aside their verdict which determines on one side or the other.

Brooks v. Moore, 67 Barb. 393; Stafford v. Leamy, 43 How. Pr. 40; Duncan v. Baillee, 3 Alb. L. J. 30.

Respondent was employed by both Schaefer and Streeter, and in bringing them together was a mere middleman; and they having consummated an exchange, he became entitled to recover commissions from both.

Seigel v. Gould, 7 Lans. 179; Paley, Agency, § 12; Story, Agency, $ 31; Rupp v. Sampson, 16 Grey, 398; Redfield v. Tegg, 38 N. Y. 212; Balheimer v. Reichardt, 55 How. Pr. 414.

Both parties knew that respondent was acting for both; there was no concealment on respondent's part, and appellant does not claim to have been misled or injured by anything respondent said or did.

Rowe v. Stevens, 53 N. Y. 621.

Danforth, J., delivered the opinion of the court:

The plaintiff sued for commissions earned, as he alleged, upon employment by the defendant to effect a sale or exchange of certain real estate at Red Hook. He recovered judgment. This was affirmed by the general term and the defendant now appeals, making in this court the following points:

First, that he was not the owner of the property referred to, and so informed the plaintiff, at the same time disclosing the name of the owner for whom he was acting.

Second, that the plaintiff was not the procuring cause of the sale or exchange made.

Murray v. Beard, (N. Y.) 4 Cent. Rep. 129; Carman v. Beach, 63 N. Y. 97; Rice v. Wood, 113 Mass. 133; Walker v. Osgood, 98 Mass. 348; Farsworth v. Hemmer, 1 Allen, 494; Watkins v. Cousall, 1 E. D. Smith, 65; Vanderpoel v. Third, that the plaintiff was at the same Reaves, 2 E. D. Smith, 170; Moore v. Mandle-time, but without the knowledge of the debaum, 8 Mich. 433; Everhart v. Searle, 71 Pa. fendant, acting as agent for the other party to 256; Dunlop v. Richards, 2 E. D. Smith, 181. the trade. Mr. Henry Daly, Jr., for respondent: It is submitted that after a fair and honest trial, where there is much testimony on the questions of fact, and there is no misdirection of the jury by the court, the verdict will not be set aside because the court would have come to a different conclusion from that of the jury, on the force and weight of the evidence.

Polhamus v. Moser, 7 Robt. 491; Williams v. Vanderbilt, 29 Barb. 491; Mackey v. N. Y. Cent. R. R. Co. 27 Barb. 528; Fleming v. Smith, 44 Barb. 554.

The verdict was not against the evidence, it was on a disputed question of fact; there was a slight conflict of testimony, but the prepon

Fourth, that one F., also a broker, was employed, and the court erred in excluding (against objection) evidence that he paid F. full commissions.

The defendant moved to dismiss the complaint upon the grounds:

First, that defendant having stated that his wife owned the property, he was a known agent; and a recovery could not be had against him.

Second, that the employment of the plaintiff, by Mr. Streeter, not being disclosed to the defendant, is a fact which precludes plaintiff's recovery.

Third, that the evidence shows that the trade was not consummated by the plaintiff.

The motion was denied, and the trial judge | terms of sale or exchange, and became indebtin submitting the case to the jury directed ed to him for procuring an actual buyer or them to inquire: vendor, as the case may be. Sussdorff v. Schmidt, 55 N. Y. 319.

I. Which of these brokers was the procuring cause of the sale; in other words which of these men brought the sale about,—saying, "There is no doubt of the employment of Jarvis by Schaefer. The question is whether Jarvis brought the sale about. Was he the means by which Streeter and Schaefer came together, and did Mr. Jarvis' action result in the effecting of the sale?"

He also called attention to the defendant's claim that F. was the efficient cause, and instructed the jury in substance that the plaintiff could not recover unless they found that the plaintiff actually produced the purchaser. He was not asked to charge differently, nor to charge upon any other question, and no exception was taken to the charge as made. The verdict answered the question addressed to the jury in the affirmative, and we have only to see whether the trial court erred in refusing to dismiss the complaint.

The jury found that the plaintiff brought about the sale; that he was employed by the defendant. His own testimony is that he was first employed by the defendant, and afterwards by Streeter; that each was to pay him a commission for negotiating, or selling, or trading this property, and he adds: "I told them this."

The defendant, although present at the trial and examined as a witness, does not deny it. nor does he testify that he was ignorant of the plaintiff's claim that he was acting for Streeter also. The plaintiff's testimony on this point is to be weighed according to the power of the defendant to contradict it if not true; and his silence in view of the assertion of the plaintiff, made it impossible for the trial judge to hold, as matter of law, that the true relation of the plaintiff to the other party was not disclosed to the defendant. No fraud, or even concealment, was practiced by the plaintiff, and the case is not one where the same person acted as agent for both parties without their knowledge.

If it be a fact that the legal title to the property was in the wife of the defendant, it would not follow that the plaintiff could not recover in this action. There is evidence that the defendant represented himself as owner, and as The appellant relies upon the fact that he put such that he put the property into the plaint-property in Georgia with the Red Hook propiff's hands to sell or exchange, knowing at the erty. This was a circumstance for the jury to time he did so that the plaintiff was a broker consider in determining whether the plaintiff and that he "expected a commission;" that the actually produced the purchaser; and that was defendant, at the time, responded "That is all the proposition which the defendant asked to right; that he always paid a commission and have the jury pass upon. expected to pay it.'

If it were conceded that the defendant paid full commissions to F., the other broker, it could not impair the plaintiff's right to compensation for services actually rendered. It was not error therefore to exclude evidence of such payment. The plaintiff's contract was valid, and, as the jury have found, made upon good consideration and fully performed by him. The verdict was rendered upon conflicting evidence, but the exceptions point to no error. The judgment appealed from should be afAll concur.

The price was fixed by the defendant at $20,000. The usual commissions were proven to be 2 per cent, or $500. If the defendant was in fact dealing in behalf of his wife, it does not conclusively appear that he so stated, or that he assumed to act in any other than an individual capacity. But in any view of the evidence, even his own, and although he told the plaintiff that Mrs. Schaefer was the owner, the question would still be as to whom the plaintiff gave credit-to the wife or to the de-firmed. fendant.

In one aspect of the evidence there was no disclosure of his agency, and prima facie the agreement was his own, and he was bound personally. If there was evidence tending to a different conclusion, it should have been submitted to the jury. The defendant did not request it, but by his own motion left it to the trial judge. In either view, whether the defendant's agency was disclosed or not, he became personally bound if he undertook to be so, and this might be inferred from the fact that he contracted with the plaintiff in his own name and without any qualification.

Nor can it be said, as matter of law, that the employment of the plaintiff by the other party was not disclosed to the defendant; and while it may be difficult even for a broker to serve with equal efficiency two masters, neither of them can complain, or refuse compensation if it was promised, when fully informed that his agent held the same relation to the adverse dealer. Nor is there in such a contract as the present much danger that either one will be prejudiced by the dual character of the broker. The principals themselves agreed upon the

1.

2.

3.

Thomas RUTHERFORD, Respt.,

v.

VILLAGE OF HOLLEY, Appt.

It would be unreasonable to hold that
every change in the natural surface or
condition of land, made in the improve-
ment of a street or highway, which to
any extent increases the flow of sur-
face water on adjacent premises, con-
stitutes an actionable injury.

Defendant village is not responsible
for the manner in which the water flows
over the plaintiff's lot, unless it is attrib-
utable to some act of defendant.
Where excavations made in the street
and adjacent lots by the State changed
the direction of the drainage, held, that
if the village defendant by turnpiking
the street and improving the highway
did not increase the flow of surface wa-

ter on the plaintiff's lot beyond what it was prior to the excavations, it committed no wrong to plaintiff.

(Decided April 19, 1887.)

After Batavia Street was rebuilt by the State there was no way for the waters which collected in the gutter on the northwest side of the street to pass off, except by evaporation and soakage, or by passing over the street at its

a sluice had been constructed across said street

APPEAL from an order of the Supreme lowest point, which point was at or near where Court at General Term in the Fifth Depart-in 1840, at which point a sewer was constructment, reversing a judgment entered in Orleans County upon report of a referee dismissing the complaint in an action to restrain the discharging of surface water (which collected on a street) upon lands of the plaintiff. Reversed. State Street in the Village of Holley follows the course of the Erie Canal in a southeasterly

ed in 1864. To more effectually drain the waters from the northwesterly side of the street, the village trustees lowered said sewer in 1879, about six inches; and about the same time, with consent of the owner of the Cary lot, lot and emptying on the lands of the plaintiff, they took up a sewer running across the Cary and lowered that. About the same time they also constructed a covered sewer in the bed of

direction. From this street Batavia Street extends in a southwesterly direction. Within the southerly angle formed by these streets lay the gutter on the northwest side of the street a line of lots extending along Batavia Street and the lands of the plaintiff; the latter are and connected the same with the sewer runbounded northeasterly by State Street, north-ning across the street and emptying into the westerly by the said row of lots extending along sewer running through the Cary lot. Batavia Street, and southerly and easterly by Sandy Creek. A lot called the "Cary lot" is on the corner and fronts on both Batavia and State Streets.

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

A. The tannery building owned by plaintiff.
B. The Cary lot.

1. 2. 3. 4. Lots on Batavia Street.
The broken line shows the position of the sewer
across Batavia Street and the course the water took
over the surface of plaintiff's lands.

Prior to 1864 the surface water of Batavia Street and lands lying northwesterly thereof passed over the plaintiff's lands along the north side of the building thereon known as the tannery building, and into Sandy Creek.

In 1862 the surface of the land where Batavia Street now is and all west of the plaintiff's lands was removed by the State and used in repairing a break in the embankment of the Erie Canal; at the same time the State permanently appropriated the north end of the tannery building and the lands lying north of it, over which the surface water passed and filled up the same, entirely obstructing the surface water so that it passed around the tannery building to the south.

The referee found that after the sewer across said Batavia Street and the sewer across the Cary lot were filled with water, the same being unobstructed, could and did come upon the plaintiff's premises in such quantities and with such force and volume as to soak into and percolate the walls of his said tannery building and to damage and injure the same and otherwise injure and damage his said premises.

In 1879 in an action by plaintiff against the owners of the Cary lot to restrain and close up the sewer running through the same and emptying on plaintiff's land, an injunction was granted and such sewer was closed so that no water could pass through it.

At the time of lowering the sewer running across Batavia Street, defendant's officers placed a sewer plate or grate at the end of the sewer on the southeasterly side of the street at the place where it emptied into or connected with the sewer running across the Cary lot.

The referee found that since the sewer running across the Cary lot was filled up, whenever the sewer running across the street was filled with water, the water wells up through the sewer plate or grate and makes its way over the surface of the ground of the Cary lot at the lowest part thereof, and is discharged or passes on to the lands of the plaintiff, substantially in a body; and in heavy rains and thaws water flows from this sluice as aforesaid, and passes down and against the walls of the tannery building and percolates the same, and damages and injures it.

This was the condition of things at the time this action was commenced, and has so existed since the filling up of the sewer in pursuance of the decree of the court in 1879.

The plaintiff brought this action to restrain defendant from turning the surface water so collected upon his lands, and for damages. The referee reported in favor of defendant, dismissing the complaint. On appeal from a judgment entered upon his report, the general term reversed the same and defendant appealed to this court.

Mr. John H. White, for appellant:

It is immaterial what changes the defendant made upon the highway, so long as they did not increase the flow or manner of the flow of water which passed on to the plaintiff's land. Mills v. Brooklyn, 32 N. Y. 489-495.

The case of Noonan v. Albany, 79 N. Y. 470, relied upon by plaintiff's counsel, is not in point. There the city, by means of streets and gutters, had collected surface water from a large territory and poured it into a ravine where it did not flow before that time. The act of the defendant being wrongful, it was not excused from the fact that the waters would have passed off without injury to the plaintiff if some other person had not obstructed the flow of the water below the plaintiff's premises, thus causing him injury. If no more water had been poured down this ravine by the improvements made by the city than before such improvements, the defendant would not have been liable and the cases would be nearer parallel. Here the obstruction below was placed there by the State, and the plaintiff has had his pay for it.

The cases of Byrnes v. Cohoes, 67 N. Y. 204; Bastable v. Syracuse, 8 Hun, 587, and Sleight v. Kingston, 11 Hun, 594, cited by the plaintiff below, are all cases of diversion of water in other and different directions from what it had before run, to the injury of the plaintiff. And the same may be said of the case of Seifert v. Brooklyn, 2 Čent. Rep. 135, 101 N. Y. 136.

The trustees in any event did no more than they had the right to do in lowering this sluice. No substantial injury could be done the plaintiff. The improvement was proper and necessary, and they had the right to make it. The following cases illustrate this case, and lay down the correct rule as to the rights and liabilities of highway commissioners and municipal corporations, when acting as such:

Grates v. Otis, 2 Hill, 466; Benedict v. Goit, 3 Barb. 459; Radcliff v. Mayor, 4 N. Y. 203; Wilson v. Mayor, 1 Denio, 595; Waffle v. Porter, 61 Barb. 130; Waffle v. N. Y. Cent. R. R. Co. 58 Barb. 413; 53 N. Y. 11; Mills v. Brooklyn, 32 N.Y. 489; Barkley v. Wilcox, 19 Hun, 320.

Mr. John Cunneen, for respondent: A municipal corporation has no right to collect surface water from its lands or streets into an artificial channel and discharge the same upon the lands of another.

[ocr errors]

Noonan v. Albany, 79 N. Y. 470, 478.

It is the province of the referee to find the fact instead of reporting the evidence; and judgment cannot be given upon a report of evidence, no matter how strongly it may tend to establish the fact.

Jarvis v. Jarvis, 66 Barb. 331; Avery v. Foley, 4 Hun, 415; Spooner v. Lefevre, 2 Thomp. & C. 666.

Andrews, J., delivered the opinion of the court:

The fact is uncontroverted that the natural drainage of the surface water from the northeasterly side of the hill, over which Batavia Street was constructed, was through a depression at the foot of the hill on Batavia Street, which extended over the Cary lots and the lot of the plaintiff, from whose lot, prior to 1862, the water was discharged into a gully or water course at the northwesterly corner of the plaintiff's tannery.

It is also evident that the injury which the plaintiff has sustained to his tannery building, since that date, from the flow of the surface water over his premises, has resulted from the closing up of the outlet by the wall erected by the State, whereby the water was turned from its natural course and thrown against the side of the tannery. But this is not decisive against the right of the plaintiff to maintain the action. It is claimed that the Village, by the grading of Batavia Street in 1863 and the construction of gutters therein, and of the sluice across Batavia Street, has increased and facilitated the collection and discharge of surface water at the lowest point in the street, and that as a consequence a greater amount of water than naturally would have collected there, has been cast upon the Cary lot, and from there upon the premises of the plaintiff.

The finding of the referee, which is not without evidence to support it, negatives this contention. The referee, in his twentieth finding, in substance finds that the water discharged from the sewer plate or grate over the sluice on the east side of Batavia Street passes on to the Noonan v. Albany, 79 N. Y. 476; Barkley v. plaintiff's premises from the Cary lot at about Wilcox, 86 N. Y. 140; Haskell v. New Bedford, the same place that the water has at all times 108 Mass. 208. See also Byrnes v. Cohoes, 67 since 1824, when said street was laid out, passed N. Y. 206; Bastable v. Syracuse, 8 Hun, 578; upon the same; that it is the drainage from Sleight v. Kingston, 11 Hun, 597; 35 Am. Rep. substantially the same territory; and that with 431; 37 Am. Rep. 150, 763; Cooley, Torts, 579. the same amount of rain fall, "No greater There is no allegation, and there is no find-amount or volume of water passes, or is dising, that for one moment was the use adverse or under a claim of right, or that a right to use these artificial sluices has accrued to defendant by prescription, dedication, grant or otherwise. Their use merely for forty years would constitute no defense.

Wiseman v. Lucksinger, 84 N. Y. 31. The rights of the parties after the action of the State in walling up the tannery, are to be determined by the subsequent events.

Hancock v. Wentworth, 5 Met. 446; Missey v. Proprietors Union Wharf, 41 Maine, 34.

The "gully or waterway" being obstructed by the State, the defendant subsequently had no right to gather and discharge this water in the upper end of the sluice, when it knew that the necessary consequence would be and is, as the referee finds, to damage plaintiff's property.

charged on to plaintiff's premises from this sluice (since said Cary's sewer was closed) than did pass or was discharged on to the same at all times since said streets (Batavia and State Streets) were laid out."

It is not claimed that the course or amount of surface water which found its way to the foot of the hill, before Batavia Street was laid out in 1824, was increased by the original construction of the street. The finding, therefore, is equivalent to a finding that the present discharge from the sluice does not exceed the natural drainage at this point, of the surface water of the adjacent territory. It is insisted, however, that by the construction of the gutter on the north side of Batavia Street, and the sluice across the street, the water is made to flow in an artificial channel, and is collected in a body and cast upon the plaintiff's lot. The gutter and

sluice were constructed for the protection and improvement of the road way.

It is not improbable that the turnpiking of the street and the construction of the gutters diminish to some extent the waste by soakage and evaporation, and thereby increase somewhat the quantity of water which collects at the sluice, and which is discharged on to the Cary lot, and ultimately on the plaintiff's lot. But it would be quite unreasonable to hold that every change in the natural surface or condition of land, made in the improvement of a street or highway, which to any extent increases the flow of surface water on adjacent premises, constitutes an actionable injury. The case of Noonan v. Albany, 79 N. Y. 476, and cases of kindred character, establish no such unreasonable and inconvenient doctrine.

But it is said that the water, by the acts of the defendant, is thrown upon the plaintiff's lot in a body, whereas before it was dispersed over the surface and was absorbed doing comparatively little injury. But there is no finding that the manner of discharge has been materially changed by the acts of the defendant, and such a finding would have been in conflict with some of the evidence, although it might have been warranted by other evidence. It is true that it is found that the water passes on to the plaintiff's lot from the Cary lot substantially in a body.

But this finding is made in connection with another finding: that the water now passes over the surface of the Cary lot at the lowest point. before reaching the plaintiff's lot. The defendant is not responsible for the manner in which the water flows over the plaintiff's lot, unless it is attributable to some act of the defendant. This question was controverted on the trial.

The Cary sewer which connected with the sluice was closed in 1879. It is found that since that time no water has passed through it; and the water which now reaches the plaintiff's lot first passes through the sluice across the road to the east side thereof, where it is interrupted by the wall or face of the closed Cary sewer, and escapes by "welling up" through the sewer plate or grate, and thence passes over the surface of the Cary lot and on to the lot of the plaintiff.

The construction of the sluice probably facilitates the passage of the water from the road way; but it was not shown, or at least it was not shown by uncontradicted evidence, that the construction of the sluice, or the manner in which the water was discharged from it, affected materially the flow across the plaintiff's lot, from what it originally was before the sluice was constructed.

It is claimed that the excavations in the street

and adjacent lots, made by the State in 1862 for canal purposes, changed to some extent the direction of the drainage, and that the Village had no right afterward, by turnpiking the street, to alter to the prejudice of the plaintiff's lot, the surface of this new earth created by the canal authorities, and that in determining the rights of the parties, this new condition must be regarded in the same way as though it was the original and natural condition of the land. It is a sufficient answer to this claim that there is no satisfactory evidence that the act of the defendant in restoring the highway made any

substantial change in the direction or volume of the surface water, unfavorable to the plaintiff. But at all events we are of opinion that if the defendant in improving the highway did not increase the flow of surface water on the plaintiff's lot beyond what it was prior to the excavation, they committed no wrong to the plaintiff.

Our conclusion, after a careful examination of the case, is adverse to the general term. The general term reversed the judgment of the referee, on the ground that the facts found by him showed an actionable injury, within the case of Noonan v. Albany, supra. We differ from the general term on the merits, simply as to the construction of the findings of fact by the referee, which are numerous and complicated.

We think there are no valid exceptions to evidence.

The order of the General Term should, therefore, be reversed, and the judgment on the report of the referee affirmed.

All concur.

Alfred H. SMITH, et al., Respts.,

v.

Henry CLEWS Appt.

A diamond dealer who had on two former occasions been entrusted with diamonds by plaintiffs, which he had sold and accounted for the proceeds without any fault being found, so far as appears, on account of any lack of authority to sell, obtained from them other diamonds, for which he gave a receipt stating that they were received on approval to show to his customers and that they were to be returned to plaintiffs on demand. He subsequently sold the diamonds to defendant and received the price. Held,

(a) That the receipt, construed in connection with the facts, meant that the dealer had authority to sell the diamonds to a customer if they met his approval, and that if not actually sold before demand made, they should be returned to plaintiffs upon such demand.

(b) That, under the facts, plaintiffs had conferred upon the dealer author. ity to sell the diamonds and to give a good title, and that defendant, having purchased them from him in good faith, has a right to retain them as against plaintiffs.

[blocks in formation]
« AnteriorContinuar »