Shapiro v. Greenwich Savings Bank

Full title: HENRY SHAPIRO et al., Copartners under the Name of HENRY SHAPIRO COMPANY…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 22, 1943

266 App. Div. 359 (N.Y. App. Div. 1943)

42 N.Y.S.2d 316

Opinion

June 22, 1943.

Appeal from Supreme Court, New York County, CAREW, J.

Harry M. Marks of counsel ( Ben Cooperman with him on the brief; Marks Marks, attorneys), for appellants.

Alfred W. Bergren of counsel ( Frank E. Sprower with him on the brief; Middlebrook Sincerbeaux, attorneys), for respondent Greenwich Savings Bank.

Julius L. Neidle of counsel ( Neidle Taylor, attorneys), for respondents Dillon, Berghold, Walsh, McGratty, Berghold and Curry.

Per Curiam.

There was prima facie proof that plaintiff, Shapiro, had been asked to submit offers and, thus, of employment. There was like proof that plaintiff, Groskin, induced Dillon (the ultimate buyer) to negotiate for the purchase of the property. The defendant bank was notified of plaintiffs' claim for commissions before the sale was consummated, and did not terminate the employment. It was error to dismiss the first cause of action, though the parties completed negotiations in plaintiffs' absence, if the purchaser was procured through plaintiffs' instrumentality. ( Lloyd v. Matthews, 51 N.Y. 124; Sussdorff v. Schmidt, 55 N.Y. 319; Sibbald v. Bethlehem Iron Co., 83 N.Y. 378.) As plaintiffs had a cause of action for commissions, we find no basis for recovery on the remaining causes of action.

The judgment should be reversed insofar as it dismissed the first cause of action against the Greenwich Savings Bank, and a new trial ordered as to the issues raised therein, with costs to plaintiffs-appellants to abide the event, the action severed, and the judgment as to defendants-respondents, John J. Dillon, William F. Berghold, Mary D. Walsh, Catherine D. McGratty, Julia D. Berghold and Virginia D. Curry affirmed, with costs.

UNTERMYER, DORE and CALLAHAN, JJ., concur; MARTIN, P.J., and COHN, J., dissent and vote to affirm.

Judgment reversed insofar as it dismissed the first cause of action against the Greenwich Savings Bank, and a new trial ordered as to the issues raised therein, with costs to plaintiffs-appellants to abide the event, the action severed, and the judgment as to defendants-respondents, John J. Dillon, William F. Berghold, Mary D. Walsh, Catherine D. McGratty, Julia D. Berghold and Virginia D. Curry affirmed, with costs to said respondents against the appellants.