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Rosenthal v. Art Metal Inc.

Decided: May 28, 1968.


Gaulkin, Lewis and Kolovsky.

Per Curiam

In accordance with his opinion reported in 95 N.J. Super. 8 (Law Div. 1967) Judge Owens entered judgment in favor of defendants, and plaintiffs appeal. We affirm.

The facts are stated in that opinion and need not be repeated in full. Suffice it to say that (giving plaintiffs the benefit of all evidence favorable to them) plaintiff Rosenthal

had been employed as a real estate salesman by Feist & Feist (hereafter Feist); in February 1963 he left their employ and, as required by N.J.S.A. 45:15-14, his salesman's license was surrendered; on April 16, he took the broker's examination; on April 18 he inquired by telephone and was told he had passed the examination; on April 22, before he received the license, he telephoned General Dynamics, whose plant had been destroyed by fire, and told its Mr. Yachmetz that the Art Metal plant was for sale and might be suitable for General Dynamics; the Art Metal plant was listed exclusively with Feist and five other brokers; on April 22, after talking to Yachmetz, Rosenthal entered into an agreement with Feist to split the commission if General Dynamics bought the property; on April 23 Rosenthal mailed a plot plan and other information relating to the property to General Dynamics; Rosenthal never told General Dynamics that the property was listed with Feist or of Feist's interest in the deal, but on April 23 he wrote Art Metal of his arrangement with Feist; Art Metal never replied; Feist never communicated with Art Metal or General Dynamics about the deal prior to the sale; on April 25 Rosenthal received his broker's license; Rosenthal heard nothing from Art Metal or General Dynamics until May 12, when Yachmetz called him and asked whether he had any other property to offer, and Rosenthal suggested property in Elizabeth; Rosenthal did nothing other than above set forth to promote the sale, and Feist did nothing at all; on or about May 25 General Dynamics contracted to buy the property and thereafter closed title. Incidentally, all of Rosenthal's letters were on letterheads of "Industrial Realty."

N.J.S.A. 45:15-10, which deals with the examination for a broker's license provides, in pertinent part, that:

"Upon satisfactorily passing such examination a license shall be granted by the commission to the successful applicant therefor as a real estate broker * * *, and the applicant upon receiving the license is authorized to conduct in this state the business of a real estate broker * * *." (Emphasis added)

Thus, the statute makes it clear that until receipt of the license an individual is not authorized to act as a broker. Acting as a broker without a license is punishable by a fine. N.J.S.A. 45:15-23. And there is no distinction between an individual who was previously licensed as a salesman and one who was not.

In essence, Judge Owens held that Rosenthal was not entitled to collect a commission from Art Metal in his own right because he had no contract with it and was not licensed when he rendered the service for which he sought compensation; and Feist could not in its own right because it had done nothing to earn it. He held further that neither Rosenthal nor Feist was entitled to benefit from the co-brokerage agreement on the theory that each was the agent for the other because, when the joint enterprise was entered into and when Rosenthal acted pursuant thereto, Rosenthal was not a licensed broker. Therefore, Judge Owens concluded, neither plaintiff was entitled to recover in contract for commissions or in tort for malicious interference with his or their present contract or his or their present or prospective economic advantage. We agree. Therefore, it is not necessary for us to pass upon defendants' argument that the sale was brought about through the efforts of others, and that, even if Rosenthal had a license, plaintiffs did not do enough to entitle them to a commission.

Plaintiffs' appeal is predicated chiefly upon the proposition that N.J.S.A. 45:15-3 requires only that a plaintiff be licensed when his cause of action arose.

N.J.S.A. 45:15-3 provides:

"No person, firm, partnership, association or corporation 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 =i a duly licensed real ...

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