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Yoerg v. Northern New Jersey Mortgage Associates

Decided: March 22, 1957.


Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.


Plaintiff, a New York resident, sued in the Bergen County District Court to recover commissions due under the terms of a written agreement dated August 26, 1953 with defendant, a New Jersey corporation, to procure mortgage financing in connection with a residential housing development being projected by defendant in New York State. Plaintiff was to receive commissions at the rate of 1/4 of 1%, to be paid when the mortgage money was advanced to the builder.

The record before us consists of a "Statement by Court in Lieu of Record" prepared by the trial court pursuant to R.R. 1:6-3. Defendant-appellant's appendix also includes "Appellant's Statement of Evidence and Proceedings" and "Respondent's Amendment to Statement of Evidence and Proceedings." This is improper. Where there is no stenographic record the record as settled by the trial court is conclusive and exclusive, subject to proceedings to correct or modify the record pursuant to R.R. 1:6-6. R.R. 1:6-3. There having been no such proceedings, we take no notice whatever of the extraneous documents.

From the court's statement we find evidence supporting a finding that plaintiff procured mortgage money advances by a Tarrytown, New York, bank for defendant's project in the aggregate of $462,745, on which he would be entitled to commissions of $1,156. The trial court entered judgment in favor of the plaintiff for $1,000, the excess being waived.

Defendant's first ground of appeal is that plaintiff was permitted to refresh his recollection as to the details of the individual mortgages negotiated by reference to a list identified by an employee of the bank, but not custodian of the document, as a correct list of mortgages representing "business [which] was introduced to the County Trust Company by Norman Yoerg." The list itself was not introduced in evidence. It is asserted that this was error as plaintiff had not made the list and there was no testimony as to who had, citing Titus v. Gunn , 69 N.J.L. 410 (E. & A. 1903), and Hill v. Adams Express Company , 74 N.J.L. 338 (Sup. Ct. 1907). As there is no indication of an objection to this proof the point might well be ignored on that ground alone. In any event, it lacks merit. In the cases cited the effect of what was found objectionable was that the document itself was made evidential. In the present case that is not made to appear. Anything which in fact has the capacity to refresh the recollection of a witness may be used for that purpose even though not written or prepared by him. In such a case it is not the memorandum that is the evidence but the recollection of the witness. Marti v. Standard Fire Insurance Co. , 127 N.J.L. 591 (E. & A. 1942); 3 Wigmore on Evidence (3 rd ed. 1940), ยง 759, p. 102; cf. State v. Cestone , 38 N.J. Super. 139, 146 (App. Div. 1955); Kazanjian v. Atlas Novelty Co. , 34 N.J. Super. 362, 370 (App. Div. 1955). The proper administration of this rule of evidence must necessarily be left largely to the sound discretion of the trial court.

Another point made, equally without supporting objection at the trial, is that the best evidence rule required

that certified copies of the mortgages or the testimony of the bank employee in charge of the pertinent records be adduced. No authority is cited for this contention in the present application and we find it without merit. The doing of the work and the volume of the transactions were sufficiently established.

Finally, it is urged that recovery should have been denied for noncompliance by plaintiff with the realty brokerage licensing requirements of N.J.S.A. 45:15-1 and 45:15-3. This statute stems from L. 1921, c. 141. The latest pertinent amendment is L. 1953, c. 229, which became effective July 14, 1953, and thus antecedent to the underlying contract here involved. It is now expressly provided therein (N.J.S.A. 45:15-3) that:

"No person * * * shall bring or maintain any action in the courts of this State for the collection of compensation for the performance of any of the acts mentioned in this article without alleging and proving that he was a duly licensed real estate broker at the time the alleged cause of action arose."

The complaint in this case was devoid of any reference to licensing of the plaintiff but nothing on its face indicated any New Jersey incident of the transaction involved other than that defendant is a New Jersey corporation.

Notwithstanding that the mortgages were negotiated in New York for placement on New York real estate, we have no doubt that if the agreement between the parties to the transaction was executed in New Jersey the proscription of ...

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