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Kagan v. Berman

Decided: July 21, 1953.

GEORGE M. KAGAN, PLAINTIFF-RESPONDENT,
v.
LILLIE BERMAN, DEFENDANT, AND MORRIS BERMAN, DEFENDANT-APPELLANT



Stein, Proctor and Conlon. The opinion of the court was delivered by Proctor, J.s.c. (temporarily assigned).

Proctor

Plaintiff brought an action against Morris Berman and Lillie Berman to recover compensation for legal services. The action against Lillie Berman was dismissed at the end of plaintiff's case. The trial resulted in a verdict in favor of the plaintiff for $4,000 and the defendant Morris Berman appeals from the judgment entered thereon.

The first point urged for reversal is that the trial court erred in denying defendant's motions for dismissal at the end of plaintiff's case and for judgment at the end of the whole case, the contention being that in rendering services for the defendant, the plaintiff acted as a real estate broker and his action, not being based on a writing, was barred by the statute of frauds (R.S. 25:1-9). We consider

only the ruling denying the motion for judgment. City National Bank and Trust Co. v. Hassler , 9 N.J. Super. 153 (App. Div. 1950).

In the pretrial order it was stipulated:

"The issues to be determined at the trial are: (a) whether or not def. requested plaintiff to perform any legal services (b) if said services were requested, what they consisted of and the reasonable value."

At the trial the evidence tended to show the following situation: The plaintiff is an attorney-at-law. In March 1951 the defendant telephoned the plaintiff regarding property owned by the defendant and his wife. The defendant said "he was anxious to dispose of his property on Main Street," Rahway; that certain persons had made inquiries regarding its purchase but nothing had materialized and he asked the plaintiff "whether it was possible for me (plaintiff) to do anything about securing a large commercial building situation on Main Street that would enable him (defendant) to dispose of his property." The defendant asked the plaintiff to see him for further discussion. At a meeting of the parties shortly thereafter, the plaintiff called attention to the poor condition of the building on the property; he also told the defendant that the frontage of the property was too small to attract any large commercial development. The defendant's property had a frontage of approximately 53 feet and consisted, in part, of a house and two attached stores. One store was vacant and the defendant operated his business in the other. Adjacent to the defendant's property was a plot owned by people named Fox, which plot had a frontage of approximately 40 feet, and beyond that was a property with a frontage of about 78 feet owned by the Robert Allen Realty Corporation. The plaintiff was the majority stockholder of this corporation. During the discussion the defendant suggested the possibility of joining his property with the other two. Both knew that the intervening plot had been recently acquired by the Foxes for the purpose of building a store thereon, since they would

soon be compelled to vacate the premises in which they were conducting their business. The plaintiff testified:

"So he (defendant) asked me whether it wouldn't be possible for me, in behalf of him and his wife, to contact the Foxes to see whether something couldn't be worked out to tie in the pieces together, and also to see what I could do as far as attracting the proper type of commercial development.

So before making any decision on that, I asked him what he thought he would want to dispose of his property for, and he asked me for an expression of opinion from myself, and I gave it to him. I told him that I thought the land was worth $500 a front foot, and having 53 1/2 feet, his property was worth between $26,000 and $27,000. And he told me that if he could get that kind of a price he would be very happy to dispose of it.

So I went into the question of what would be involved in so far as accomplishing this whole thing, and I told him there was a considerable amount of work involved, and I wouldn't want to step into this situation unless there was some arrangement for compensation. His attitude was: George, I certainly didn't ask you to step into this picture and do this for nothing for me. You bring this transaction about whereby you can bring this whole deal to a conclusion, and bring in a commercial development, and I will be glad ...


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