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Louis Schlesinger Inc. v. Burstein Realty Co.

Decided: September 22, 1939.

LOUIS SCHLESINGER, INC., A CORPORATION, PLAINTIFF-RESPONDENT,
v.
BURSTEIN REALTY CO., A CORPORATION, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, Joseph J. Corn.

For the respondent, Hannoch & Lasser.

Hetfield

The opinion of the court was delivered by

HETFIELD, J. This is an appeal to review a judgment in favor of the plaintiff-respondent entered in the Supreme Court, Essex Circuit, as a result of a jury's verdict. Suit was instituted to recover brokerage commissions for the procurement of a lessee for a building owned by the defendant-appellant, situated at No. 682 South Fifteenth street, in the city of Newark.

The first count of the complaint, which the plaintiff relied upon at the trial, alleges in substance that the defendant

entered into an agreement with the plaintiff, whereby the plaintiff was authorized to procure a tenant for the property involved for a period of five years commencing February 1st, 1937, at an annual rental of $6,000 for the first three years, $6,500 for the fourth year, and $7,000 for the fifth year, plaintiff to receive for its services a commission of five per cent. of the aggregate rental; that the plaintiff did, on or about November 20th, 1936, procure a tenant ready, willing and able to lease the premises under the terms fixed by the defendant, and presented and introduced the prospective tenant to the defendant company; that the defendant, on or about December 1st, 1936, disregarding its agreement with the plaintiff and the tenant produced by the plaintiff, entered into a lease for the premises providing for its rental with the New Jersey Good Humor, Inc., and that the plaintiff refused to pay the defendant the commissions for services rendered. The answer denies all the essential allegations contained in the complaint, except the one charging that the defendant entered into a lease with the New Jersey Good Humor, Inc., which is admitted.

The appellant first seeks a reversal on the ground that the trial court erred in refusing to strike the complaint, having made a motion for that purpose at the trial under rule 40 of the Supreme Court. It is contended that the complaint did not disclose a cause of action for the reason it alleged that the contract of authorization between the parties provided that the plaintiff was "to procure a tenant for the said property," and that the plaintiff procured a tenant ready, willing and able to lease the property in accordance with the terms of its contract, and that the defendant leased the property to a party other than the one procured by the plaintiff. The appellant argues that in the absence of a special agreement to the contrary, a broker does not earn commissions by merely bringing together the landlord and the proposed tenant, and that the broker is not entitled to any commissions until and unless a binding lease results from his efforts, and as the complaint contained no allegation to this effect, no cause of action was stated.

We think the refusal to strike was proper, as the allegations

contained in the complaint were well within the principle, firmly established by the courts of this and other states, that a broker engaged to sell or rent property is entitled to commissions when he has procured a purchaser or tenant able and willing to conclude a bargain on the terms under which the broker was authorized to act, and such right cannot be defeated by any default of the principal. Hinds v. Henry, 36 N.J.L. 332; Ryer v. . Turkel, 75 Id. 677; Klipper v. . Schlossberg, 96 Id. 397; Feist & Feist, Inc., v. Spitzer, 107 Id. 138; Fiedler Corp. v. Manufacturers, &c., Co., 108 Id. 364; Hekemian & Co. v. Rivara, 121 Id. 418, and Manfredi v. Boss (Rhode Island), 145 A. 442.

It is next contended that it was error to admit in evidence letters from and to the Burstein Body Works, Inc., and from the respondent to one Leon Rosenthal, and certain conversations had with Rosenthal and Barnet Burstein as no proof was submitted that Burstein was the agent of appellant, as well as a certified copy of the annual report of the corporation filed by it with the secretary of state. The testimony in the case clearly indicates that the admissions complained of were proper as they were evidential of the authority of Barnet Burstein to conduct all of the affairs of the defendant corporation, and to act as its general agent and manager, not only in the present transaction, but in any and all other matters, and there was ample evidence to warrant the jury in finding that such was the fact. There was proof presented from which it might reasonably be inferred that the defendant was a "close corporation," all of the stock being held by Barnet Burstein and Lena Burstein, his wife, and their son and daughter; that the property in question, prior to its being conveyed and transferred to the defendant, was owned by Barnet Burstein and his wife; that at the time the contract of authorization between the present parties was entered into, Barnet Burstein was vice-president ...


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