Civil action. On motion to strike answer.
Waugh, J.c.c. (temporarily assigned).
[39 NJSuper Page 231] Plaintiff, Thomas F. O'Connor, brings this action against defendant, Board of Commissioners of West Orange, to recover a commission, allegedly due plaintiff, from the sale of certain municipal property. Plaintiff alleges that he was the person who consummated
the sale, and consequently, under the provisions of N.J.S.A. 40:60-26, paragraphs (a) and (d), he is legally entitled to a commission of five per cent of the purchase price.
The facts are substantially as follows:
Plaintiff, a licensed real estate broker of this State, had on many occasions prior to the one in question procured purchasers for property owned by the Town of West Orange. On each of these occasions he was paid the statutory five per cent of the purchase price as commission.
Prior to the negotiations that gave rise to the present suit the defendant board, plaintiff alleges, agreed to pay to plaintiff the legal rate of commission if plaintiff would procure a purchaser for the municipal property designated as lots 11-16 in Block 80-D on the tax map of the Town of West Orange. This agreement was not reduced to writing.
In accordance with this alleged agreement plaintiff negotiated with the Moormann Construction Company of Bloomfield, New Jersey, and as a result submitted to the Board of Commissioners of West Orange an offer of $15,700 for the above described property. Thereafter, this property, in accordance with N.J.S.A. 40:60-26, paragraph (a) , was advertised for public sale at a minimum price of $15,700. The Moormann Construction Company was the successful bidder in the amount of $15,700 and made a cash deposit with the Town of West Orange in the amount of ten per cent of the purchase price. Plaintiff now demands five per cent of the purchase price as commission for his services in consummating the sale. Defendant, in its answer, relies on R.S. 25:1-9, the Statute of Frauds, as to commissions of real estate brokers or agents, and states that no memorandum or note or any other writing signed by defendants was made as required by the statute.
The statutory provisions applicable to the present suit are as follows:
"Except as herein otherwise provided, no broker or real estate agent selling or exchanging real estate for or on account of the
owner shall be entitled to any commission for such sale or exchange, unless his authority therefor is in writing, signed by the owner or his authorized agent, or unless such authority is recognized in a writing or memorandum, signed by the owner or his authorized agent, either before or after such sale or exchange has been effected, and, in either case, the rate ...