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• Title: Thomas J. Salzano v. Angelo Pellillo
• Author : Supreme Court of New York
• Release Date : January 15, 1957
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

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[4 A.D.2d 789 Page 789] In an action to recover a broker's commission, the appeal is from a judgment of the City Court of Mount Vernon entered after
a non-jury trial, dismissing the complaint on the merits. Judgment reversed and new trial ordered, with costs to appellant
to abide the event. Respondent was a builder, developer and general contractor who was acquainted with appellant, a licensed
real estate broker. Appellant's cause of action was to recover a 5% commission based on the total price of the sale of a parcel
of land in respondent's development plus the price of construction of a home on said plot by respondent. It was conceded that,
on April 20, 1952 the appellant brought Frank Block and Rochelle Block, his wife, who, having sold their own home through
another broker, were looking for another home, to respondent's development, introduced them to respondent and showed them
several homes already built on the development. The evidence was in conflict as to whether appellant brought the Blocks to
the development after that date. It was conceded that, in July, 1952, the respondent sold a parcel of ground in the development
to the Blocks for $3,000 and thereafter constructed a house thereon for them at a price of $29,500. Appellant was not present
at the negotiations between the respondent and the Blocks that culminated in the sale. One of the purchasers, testifying as
respondent's witness, said that the agreements for the sale of the land and the construction of the house were made simultaneously.
He denied that the purchasers agreed to pay any commission to appellant. Respondent did not testify personally during the
trial but, in his examination before trial, he conceded that appellant had earned a commission on the sale of the land, although
he said that he (respondent) and the purchasers had agreed that the purchasers would pay the commission on the sale of the
land (see, e.g., Metcalfe v. Gordon, 86 App. Div. 368, 370-371). It was clear that appellant asserted his right to commissions
prior to the execution of the written contract between respondent and the purchasers. The trial court based its determination
on the theory that, between the introduction of the purchasers to respondent and the eventual sale, it was appellant's duty
"to operate as the procuring cause of the sale, that is, as the efficient producing agency linking the two." Implicit in the
determination was a ruling that appellant could [4 A.D.2d 789 Page 790]

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