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Flaster v. Lincoln Tidewater Terminals

Decided: January 25, 1940.

LEO FLASTER, PLAINTIFF-APPELLANT,
v.
LINCOLN TIDEWATER TERMINALS ET AL., DEFENDANTS-RESPONDENTS



On appeal from a judgment of the Supreme Court.

For the appellant, McCarter, English & Egner and James R. E. Ozias.

For the respondent city of Newark, James F. X. O'Brien and Thomas M. Kane.

For the respondents Lincoln Tidewater Terminals and Newark Tidewater Terminal, Inc., Lum, Tamblyn & Fairlie and James Raymond Berry.

Donges

The opinion of the court was delivered by

DONGES, J. This is an appeal from a judgment of nonsuit entered in the Supreme Court, after a trial at the Essex County Circuit.

Plaintiff, a real estate broker, sued to recover commissions for the asserted leasing through him of the so-called Army Base at Port Newark by the city of Newark to the Newark

Tidewater Terminal, Inc. The defendants are the city of Newark, Lincoln Tidewater Terminals and Newark Tidewater Terminal, Inc., the latter being a corporation created by the Lincoln Tidewater Terminals for the purpose of leasing and operating the property.

The complaint is in ten counts. The first five are against the Lincoln company and seek recovery on (1) an express contract to pay the customary broker's fee; (2) an engagement to pay the reasonable value of the services. It is alleged that the defendant willfully and fraudulently, and for the purpose of preventing plaintiff from earning a commission, secretly entered into negotiations direct with the city of Newark, and thereafter entered into the lease of the premises in the name of its nominee, whereby plaintiff was deprived of the commission to which he is entitled. The next three counts are against the city of Newark, and allege generally an agreement to pay the customary broker's commission and an obligation to pay the reasonable value of the services rendered, and that the city "wrongfully, maliciously and improperly induced the Lincoln Tidewater Terminals to drop and ignore plaintiff as its broker and to deal directly with the city of Newark in negotiating the terms of the leasing of said property to the exclusion of plaintiff." The ninth and tenth counts charge a conspiracy of the three defendants to deprive plaintiff of his commissions and to injure him in his business.

It is undisputed that a lease was entered into between the city and Newark Tidewater Terminal, Inc., on September 1st, 1936, at an annual rental of $100,000 for a term of fifteen years. Plaintiff claimed commissions of five per cent. amounting to $75,000.

The first point urged is that there was a jury question as to plaintiff's claim against Lincoln for the reasonable value of services rendered to that company. The express contract allegation is not pressed. The claim is stated in appellant's brief as follows: "It is true that there was no express agreement between the plaintiff and the Lincoln Tidewater Terminals that the plaintiff would receive any fixed compensation for his ...


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