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Palkoski v. Garcia

Decided: June 27, 1955.

DENNIS PALKOSKI, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
JOSE M. GARCIA, ET AL., DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS



On certified appeal from the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

The defendants are Jose M. Garcia and three corporations organized by him primarily for the construction and the ultimate operation of garden apartment houses, Northern Valley Builders Supply Company, American Home Builders, and Brookview Gardens, Inc. Northern Valley undertook to supply the lumber for the project; American was a construction company; and Brookview was the builder of the apartment houses, five in number, accommodating 109 families, and the owner-operator thereafter.

In 1946, the plaintiff Palkoski assumed the management of a lumber yard for Northern Valley, at a fixed weekly salary; and in this capacity he provided the lumber and materials for the construction of the Brookview apartments. Later on, at the instance of Garcia he also superintended construction for American; but he was not at any time a salaried employee of Brookview. There was no increase of salary for the extra service rendered to American, although there was at some period of the employment a salary increase of $10 per week. His salary was paid by checks of Northern Valley, but on the corporate books part of the salary was allocated to Brookview, a practice unknown to him, Palkoski said. His brief says that the "companies overlapped," and this allocation of salary was an "inter-company charge." He was vice-president of all three corporations, holding but a single share of stock in each, and Garcia was the principal stockholder of each of the companies. And it is suggested that there was an integration of corporate endeavors for the fulfillment of the construction project particularly relevant to one of the major issues.

Palkoski testified that he "first became actively interested in any of the affairs" of Brookview when Garcia, complaining of the number of apartment vacancies and the demand made by Brookview's real estate broker, one Wardell, for

an increase of the then current rental commission of $50 an apartment, agreed to pay Palkoski "$50 for each apartment that was rented" by him, the service to be performed after the hours of his regular employment with Northern Valley.

In June 1952, Palkoski's services were terminated; and thereupon he brought this action for the recovery of $2,900 allegedly advanced by him to American; $3,944 for advances to Northern Valley and unpaid salary checks; and $5,200 for commissions on apartment rentals, 104 in all, made on Brookview's behalf. Garcia, himself, was also sued as individually responsible for all the claims thus made against the corporations.

There was a verdict of $5,200 against Brookview for rental commissions; $2,900 against Garcia for advances found by the jury to have been made to him individually; and $2,743.38 against Northern Valley for advances to it.

The Appellate Division reversed the judgment for rental commissions as untenable for want of the statutory qualification of plaintiff as a real estate broker, R.S. 45:15-1, et seq., directed judgment for Brookview on this count, and affirmed the judgments otherwise. 32 N.J. Super. 343 (1954).

The case is here by certification on cross-petitions.

It is insisted that Palkoski has a legally enforceable right to commissions for the apartment rentals even though he was not a licensed real estate broker when the services were rendered.

It is said that Garcia "organized, owned and operated the three corporate defendants"; "his will was the will of the corporations"; "he hired the plaintiff," who "originally managed the lumber yard, later became superintendent of construction 'and did some work around the apartment project'"; "salary checks were issued by one company, but the amount was allocated in part to the others"; Palkoski was also vice-president of all three corporations, and thus Garcia "was ...


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