For modification -- Chief Justice Weintraub, and Justices Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance and reversal -- Justice Heher. The opinion of the court was delivered by Francis, J. Heher, J. (concurring in reversal).
[29 NJ Page 66] Plaintiffs are real estate brokers. J. J. Tanenbaum is licensed as such only in the State of New York; A.P. Levin, Inc., a New Jersey corporation, is licensed in this State. They brought suit charging that the defendants, by tortiously interfering with their prospective contractual advantage in connection with the sale of certain New Jersey realty, deprived them of commissions. The trial court entered summary judgment against Tanenbaum on the ground that he was barred from recovery under N.J.S.A. 45:15-1 et seq., because he had no license in this State to act as a broker, and against Levin, Inc., because, having been engaged as co-broker by Tanenbaum alone, its rights could rise no higher than his. The Appellate Division
affirmed the judgment, 50 N.J. Super. 342 (App. Div. 1958), and we granted certification. 28 N.J. 32 (1958).
The motion for summary judgment was submitted on the pleadings, pretrial order, affidavits and depositions. Unfortunately, on motions of this type factual infirmities or ambiguities frequently appear on close study by an appellate tribunal and make necessary a remand for plenary trial. For this reason, the decisions on appeal have demanded the exercise of great caution and close scrutiny of the papers of the movant before a litigant is deprived of the conventional trial. See Mayflower Industries v. Thor Corp., 15 N.J. Super. 139, 155-157 (Ch. Div. 1951), affirmed on opinion below, 9 N.J. 605 (1952); C.B. Snyder Realty Co. v. Nat. Newark & Essex Banking Co., 14 N.J. 146, 155 (1953); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954).
The complaint filed by the plaintiffs is in two counts. The first outlines the claim of Tanenbaum alone. It does not set forth his home address nor that of his place of business. The recital is limited to the statement that for many years he has been engaged in business as a realtor individually and as Property Analysis Associates. No allegation is made that he is a licensed real estate broker of New York or New Jersey. In view of the obvious relevancy of the licensing statute, N.J.S.A. 45:15-3, the allegations might well have been more specific. Proof on the motion disclosed the place of business to be in New York City but nowhere was it shown that Tanenbaum held a New York license (as required in that state, 49 McKinney's Consolidated Laws of New York, Annotated, Real Property Law § 440- a, p. 420 (1945)). The parties seem to have accepted the fact that he possessed such a license and we shall adopt that agreement. On the subject of a New Jersey license, it is admitted that he had none.
It is alleged and undisputed that Joseph G. Revicki, a New Jersey resident, was the owner of approximately 29 acres of land in Bergen County, New Jersey. The complaint charges also that Tanenbaum, acting as agent for
Revicki, produced one Benjamin Scher who executed a written contract to purchase the property at $7,000 per acre, and that Revicki agreed to pay a broker's commission for the services rendered. Tanenbaum concedes that the record is barren of any proof as to where or in which state he was first engaged to act for Revicki; and there is no allegation anywhere that the authorization was in writing as required by N.J.S.A. 25:1-9. Moreover, no evidence of any kind, actual or necessarily assumed because of the nature of the motion for summary judgment, either appears or was offered to show that Tanenbaum's services in procuring Scher, a New York resident, as buyer, were all performed in New York and that no material part or significant act thereof was engaged in in New Jersey. See James v. Hiller, 85 Ariz. 40, 330 P. 2 d 999 (Sup. Ct. 1958); St. Angel v. Schmid, 4 Ill. App. 2 d 113, 123 N.E. 2 d 642 (App. Ct. 1955); Cochran v. Ellsworth, 126 Cal. App. 2 d 429, 272 P. 2 d 904 (D. Ct. App. 1954); McGillivray v. Cronrath, 48 Idaho 97, 279 P. 613 (Sup. Ct. 1929). The contract of sale between Revicki and Scher was drawn and executed in New Jersey. A rider attached thereto contained a clause recognizing Tanenbaum as the broker responsible for bringing the parties together and reciting that Revicki "by separate agreement * * * agrees to pay the brokerage commission as in said agreement is provided." The depositions make it clear that such separate document was drawn at the same time, also in New Jersey. But no copy of it was furnished to the trial court. The rider referred to certain further specified conditions to be performed and stipulated that if not accomplished, the purchaser at his option might abandon the project, in which event the "contract shall be null and void," and neither party would have any further obligation to the other. The depositions show that Tanenbaum was doing "the leg work" in New Jersey in connection with the fulfillment of some of these conditions.
The complaint goes on to assert that subsequent to the execution of the Revicki-Scher agreement but before closing of title, Scher engaged Tanenbaum and A.P. Levin, Inc.
to resell the property and he agreed to pay a 5% commission if they were successful. The pretrial order says, and for purposes of the motion it must be considered as admitted, that this authorization took place in New York. Tanenbaum alleged that acting pursuant to the authority he and Levin, Inc. obtained the defendants, Sylvan Builders, Inc., Frank Joy, Sr., and Frank Joy, Jr., as prospective purchasers and that thereafter the defendants falsely represented to Scher and Revicki that he and Levin, Inc. were not the brokers in the matter and that no dealings had been had with them. He alleged also that as the result of the false representations which were made for the purpose of defrauding plaintiffs of their commission from Scher, the contract between Revicki and Scher was rescinded and the defendants entered into a new agreement of purchase directly with Revicki for the sum of $228,000. In specifying in their brief the contractual arrangement and the advantageous relations emanating therefrom with which defendants tortiously interfered, plaintiffs say (as they charge in their complaint) that it was the New York brokerage contract between Scher and Tanenbaum.
Tanenbaum alleges in the first count that as a result of defendants' conduct, he was deprived of a commission of $13,338, to which he was entitled under the original Revicki-Scher contract. The second count is prosecuted by both Tanenbaum and Levin, Inc. jointly. They repeat the allegations of the first count and claim $11,000 as damages representing a 5% commission on the Revicki-defendants agreement of sale.
By a third-party complaint, the defendants brought in Scher and one Warren Mack, a New Jersey real estate broker, who had been recognized by Revicki and the defendants as the responsible agent in the transaction which finally resulted in the actual sale of the property. The pleadings with respect thereto do not ...