Opinion
February 27, 1950.
The first of two causes of action is to recover brokerage against a seller of real property. The second cause of action, for damages, is against defendants John Callahan and Peter Callahan, the purchasers, for interference with the brokerage contract between defendant Mastromarino and the plaintiff, and against all the defendants for conspiracy to deprive plaintiff of his commission. The court dismissed the complaint as against defendant John Callahan and dismissed the second cause of action against defendant Mastromarino. Defendants Peter Callahan and John Mastromarino each appeals from a judgment of the County Court, Westchester County, for plaintiff and against him. Plaintiff appeals from so much of the judgment as provides that the complaint be dismissed as against defendant John Callahan and as the judgment further provides that the judgment against the remaining defendants be equally divided between them. On appeal by defendant Mastromarino, judgment insofar as appealed from, affirmed, with costs against said defendant and to plaintiff. On appeal by defendant Peter Callahan, judgment, insofar as appealed from, reversed on the law, with costs against plaintiff, and complaint dismissed as against said defendant Peter Callahan, with costs against the plaintiff. On appeal by plaintiff, judgment, insofar as appealed from, modified on the law by striking from the last ordering paragraph the following "that the aforesaid judgment be equally divided between the said defendants Peter Callahan and John Mastromarino". As so modified, the judgment is affirmed, with costs against the plaintiff and to defendant John Callahan. The contract negotiations of the seller and defendant Peter Callahan, one of the purchasers, and their consummation of an agreement on terms which differed from those which the seller set forth to the plaintiff, does not preclude recovery for brokerage. ( Colvin v. Post Mtge. Land Co., 225 N.Y. 510, 514; Hunt v. Becker, 173 App. Div. 9, 12, 13; Sussdorff v. Schmidt, 55 N.Y. 319, 322.) Nor does the claim of the seller that he was unaware of the fact that plaintiff was the procuring cause until after consummation of negotiations serve to bar recovery, in the light of the facts which it was within the province of the jury to find. ( Metcalfe v. Gordon, 86 App. Div. 368, 371, 372.) As to the judgment against Peter Callahan, inasmuch as plaintiff has recovered a judgment against the seller for the brokerage, plaintiff has sustained no damage by reason of alleged interference on the part of the purchasers. ( Shapiro v. Greenwich Sav. Bank, 266 App. Div. 359, affd. 293 N.Y. 724; Simon v. Noma Elec. Corp., 293 N.Y. 171, 177.) There was no proof in any event that defendant John Callahan was guilty of intentional interference. The suggestion of the jury that the verdict in the full sum which they rendered against the defendants be paid equally by them was superfluous and should not have been carried into the judgment. Carswell, Acting P.J., Johnston, Sneed, Wenzel and MacCrate, JJ., concur.