BRUCHSALER v. SCHLEGEL. (Supreme Court, Appellate Term, Second Department. December, 1916.) 1. BROKERS 40-COMMISSIONS-EMPLOYMENT BY OWNER. Where a broker was employed to sell either of two properties owned by the defendant, and sold one of them and received his commission, his employment ended, and his subsequent production of a purchaser of the other property was a purely voluntary act, not entitling him to a commission. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 38-40; Dec. Dig. 40.] 2. BROKERS 40-RIGHT TO COMMISSION-EMPLOYMENT. A broker who produces a purchaser for real property is not entitled to commissions from the seller, unless he was employed by the seller to find a purchaser, or unless the seller promises upon a valuable consideration to pay a commission. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 38-40; Dec. Dig. 40.] Appeal from Municipal Court, Borough of Queens, First District. Action by Max Bruchsaler against Marie Schlegel. From a judgment of the Municipal Court of the City of New York, Borough of Queens, First Department, rendered October 25, 1916, in favor of plaintiff, for $178 damages and costs, after a trial by the court without a jury, defendant appeals. Reversed, and judgment absolute directed for defendant, dismissing the complaint on the merits. Argued December term, 1916, before BENEDICT, JAYCOX, and CLARK, JJ. Frederick W. Ritter, of Long Island City, for appellant. BENEDICT, J. This is an action for $160, claimed to be due plaintiff as commissions on sale of real property. The answer is a general denial. Had the plaintiff proved his employment by defendant to find a purchaser for the real property for the sale of which he claims a commission, I think he could be said to have fairly made out his case, for it was shown that he brought a purchaser to defendant who offered $6,000; that the purchaser was referred to a Mr. Koch, who seems to have been defendant's agent and adviser; that he went to Koch the next day; and that afterward on that day, at a meeting between defendant, Koch, and the purchaser, an agreement was reached whereby the purchaser took the property at $6,400. [1] There is, however, in my opinion, a fatal defect in plaintiff's case, in that he failed to prove his employment by defendant, or any promise on her part to pay him commissions on the sale of the real property in question. In the attempt to prove his employment, plaintiff showed that some time previous, when defendant was in need of money, he had been employed to sell either one of two properties which defendant owned, namely, 235-237 Vernon avenue and 227 Franklin street, Long Island City; the latter being the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes property for the sale of which commission is claimed here. Plaintiff succeeded in disposing of the Vernon avenue premises, and was paid his commission. Thereupon, in my opinion, his employment ended, and his subsequent action in producing a person who made an offer for, and subsequently bought, the Franklin street property, was a purely voluntary act on his part, so far as defendant was concerned. [2] It is well settled that a broker who produces a purchaser for real property is not entitled to commissions from the seller, unless he was employed by the seller to find a purchaser, or unless the seller makes a promise based upon a valuable consideration to pay commissions. Denton v. Abrams, 120 App. Div. 593, 105 N. Y. Supp. 2; Brady v. Am. Machine & Foundry Co., 86 App. Div. 267, 83 N. Y. Supp. 663; Perkins v. Smith, 83 App. Div. 630, 81 N. Y. Supp. 955. The dictum in Hevia v. Wheelock, 155 App. Div. 387, 389, 390, 140 N. Y. Supp. 351, that if plaintiff were regularly engaged in business as a real estate broker, acceptance of his services in that capacity might raise an implied contract to pay therefor, which seems to rest entirely on obiter remarks (see cases cited on page 390 of 155 App. Div., 140 N. Y. Supp. 351), does not seem to be applicable here, for defendant did not accept plaintiff's services, but by taking the purchaser aside and directing him to go to Koch she indicated that she did not wish to accept plaintiff's services. Judgment reversed, with $30 costs, and judgment absolute directed for the defendant, dismissing the complaint on the merits, with costs. JAYCOX and CLARK, JJ., concur. NEW YORK TOWEL SUPPLY CO., Inc., v. LALLY et al. INJUNCTION 136(2)-COMPETITION BY FORMER EMPLOYÉS. Where defendants, former employés of plaintiff, a corporation supplying towels, aprons, and soap to offices, factories, and employés working therein, the employment having been without covenant or implied agreement not to enter into competition on leaving the employ, themselves engaged in the business after leaving plaintiff's employ, but without fraudulently representing that they still represented plaintiff, plaintiff was not entitled to an injunction pendente lite against them, on the ground that the competition was unfair, because involving use of the knowledge of plaintiff's customers acquired while in the employment, or because in violation of Penal Law (Consol. Laws, c. 40) § 553, subd. 6, denouncing the offense of taking or copying a list of customers or subscribers not less than 500 in number without the owner's consent. [Ed. Note. For other cases, see Injunction, Cent. Dig. § 306; Dec. Dig. 136(2).] Action by the New York Towel Supply Company, Incorporated, against John Lally and Harry J. Nolan. On motion for an injunction pendente lite. Motion denied. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Prince & Nathan, of New York City, for plaintiff. KELBY, J. The plaintiff is engaged in the business of supplying towels, aprons, and soap to offices, factories, and employés working therein. It seeks to enjoin two former employés from soliciting for themselves the custom of those whom they served while employed by the plaintiff. The business is, and was before plaintiff engaged in it, open, common, and essentially simple. It was also, in its origin, somewhat ancient. The primordial problem of the weekly wash has had to be met in some way ever since Adam delved and Eve span. The logic of the right of action which plaintiff asserts, when carried out, is rather startling. If sustained, its extension is warranted to every sort and variety of trade, profession, and employment. It will end forever, for youth, the ambition of competing with the employer for the old trade by fair means and hopeful energy. If the principle contended for be rigidly and uniformly applied, the preposterous legal result would follow that a 'prentice hand, having mastered his business or profession, may only use his energies to the full in some other occupation or in some other place. The plaintiff does not rest its claim upon any merit of invention or secret process brought into the business. Its old trade is entirely the result of personal solicitation, as defendants' trade must necessarily be. The plaintiff did not in advance require its employés to covenant not to enter into competition on leaving the employ; this could have been done, and probably would be enforceable. Witkop & Holmes Co. v. Boyce, 61 Misc. Rep. 126, 112 N. Y. Supp. 874, affirmed 131 App. Div. 922, 115 N. Y. Supp. 1150. Nor is it claimed that there was anything impliedly to the same effect in the general employment. Instead, it is asserted that the competition of the former employés is an unfair competition, because it involves the use of knowledge of plaintiff's customers, acquired while the employment lasted. And it is further claimed to be in violation of section 553, subd. 6, of the Penal Law, which reads as follows: "Any person having or obtaining access, either with or without the consent of the lawful owner, to any original list, compilation or other collection of the names of customers or subscribers not less than five hundred in number, or to any other original list, compilation or other collection of names not less than five hundred in number, used in connection with any lawful business or occupation whatsoever, and who, without the consent of such lawful owner, shall take possession of any such original list, compilation, or other collection, or any part thereof, or shall make or cause to be made, or take possession of, a copy or duplication thereof, or of any part thereof, or who shall aid, abet or incite any other person to take or to copy or to cause to be copied or taken, any such list, compilation or collection, or any part thereof, is guilty of a misdemeanor." * My opinion is decidedly to the contrary. As authority there are the cases of Boosing v. Dorman, 148 App. Div. 824, 133 N. Y. Supp. 910, affirmed 210 N. Y. 529, 103 N. E. 1121; Peerless Pattern Co. v. Pictorial Review Co., 147 App. Div. 717, 132 N. Y. Supp. 39. In both of these cases it was held that former employés may not be enjoined when they are doing no more than carrying into a new venture the knowledge they acquired in the old. "This, if it involves no breach of confidence, is not unlawful, for equity has no power to compel a man who changes [his employment] to wipe clean the slate of his memory." 117 App. Div. 717, 132 N. Y. Supp. 39. The plaintiff here insists, however, that the case of People's Apron & Supply Co. v. Light (decided in the Appellate Division of this department) 171 App. Div. 671, 157 N. Y. Supp. 15, is decisive of its right to the injunction sought. But as I read that case it has not this effect, and my reason would not accept it if it had. The outstanding fact in the Light Case was that the former employés were competing by means unquestionably fraudulent and unfair. They led customers to believe that they still represented the plaintiff, thus covertly seducing its trade away. The decision may be understood as having no other effect than that. Nothing of the kind is alleged against the defendants in the case at bar. It may be noted in passing that the briefs on appeal in the Light Case contain no citation of the case of Peerless Pattern Co. v. Pictorial Review Co., supra, nor does it mention that Boosing v. Dorman was affirmed in the Court of Appeals. The economic maxim that "competition is the life of trade" (People v. Sheldon, 139 N. Y. 251, 263, 34 N. E. 785, 23 L. R. A. 221, 36 Am. St. Rep. 690) should not be lightly impaired. Motion denied, with $10 costs. NEWCOMB v. WHITEHOUSE. (Supreme Court, Appellate Term, Second Department. December, 1916.) Even in the case of a patent ambiguity, if both parties to the contract each testify that they understood the ambiguous words in the same sense, no issue of fact is presented. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 768; Dec. Dig. 176(2); Trial, Cent. Dig. § 326.] 2. EVIDENCE ~450(5)—PAROL EVIDENCE-RETAINER—AMBIGUITY. A retainer at a compensation of one-third of the gross sum of money or property recovered, providing that no charge should be made for the "employment of additional counsel or other purpose," was not ambiguous, so as to permit both sides to testify as to their understanding of what it meant and what they intended by the use of the words. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2071; Dec. Dig. 450(5).] 3. ATTORNEY AND CLIENT 144-RETAINER-CONSTRUCTION. Any ambiguity as to the meaning of the language used in a written retainer should be resolved in the client's favor rather than in the favor of the attorney, who drew it. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 332, 333; Dec. Dig. 144.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 4. NEW TRIAL 38-GROUNDS-FICTITIOUS ISSUE. In an action against an attorney to recover damages for his breach of a retainer contract on a percentage basis, providing that no other charge should be made by him for "employment of additional counsel or other purpose," in the consequence of which plaintiff had been obliged to pay a handwriting expert's claim for services in the case, where the issue was whether the attorney had paid the expert for services rendered under the retainer, the only submitted issue, whether the defendant had made the statement to the plaintiff which he claimed he did when the contract was entered into, was a fictitious issue, entitling plaintiff, after judg ment for defendant, to a new trial on the real issue. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 56; Dec. Dig. 38.] 5. APPEAL AND ERROR 1050(1)-HARMLESS ERROR-HEARSAY-LETTERS. In such action, the admission of letters from the expert to the defendant, not a part of the res gestæ, nor binding upon plaintiff by any principle of estoppel, and which were purely hearsay as to her, was reversible error. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. 1050(1).] Appeal from Municipal Court, Borough of Brooklyn, First District. Action by Mary E. Newcomb against Samuel S. Whitehouse. From a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, First District, rendered May 4, 1916, in favor of the defendant, dismissing the complaint on the merits, with $55 costs, after a trial by the court with a jury, and also from an order, made May 24, 1916, denying the plaintiff's motion to set aside the verdict and for a new trial, plaintiff appeals. Judgment and order reversed, and new trial granted. Argued December term, 1916, before BENEDICT, JAYCOX, and CLARK, JJ. Edward B. Schulkind and Paris S. Russell, both of New York City, for appellant. C. Walter Randall, of New York City, for respondent. BENEDICT, J. This is an action on an oral complaint to recover $1,000 damages for an alleged breach of contract. The written answer, after a general denial, sets up as separate defenses: First, that plaintiff is not the real party in interest; second, that plaintiff is not the sole party in interest; third, full performance of all agreements between the parties; fourth, accord and satisfaction. Plaintiff, claiming $1,046.26, filed a bill of particulars, which recited an instrument in writing, dated September 5, 1908, made by Mary Ellen Newcomb and David Burbank Newcomb, whereby they retained defendant as their attorney and counsel in a certain action pending in the Circuit Court of the United States for the Southern District of New York, entitled Newcomb v. Burbank, therein recited, and in any other actions that might be brought, based upon a certain bill of sale or assignment dated July 17, 1899, and whereby they agreed that his compensation should be one-third of the gross sum of money or property recovered For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |