Opinion
April 14, 1952.
In an action by a broker against the sellers and the buyers in a real estate transaction, plaintiff has pleaded a first cause of action against the sellers for commissions, with interest from the date of the sale, which he alleges he procured, and a second cause of action against all the defendants for the same amount, which he alleges is due to him by virtue of their having secretly conspired to prevent him from earning the commissions. One of the buyers died before the trial and his executors were substituted. Plaintiff appeals from an amended judgment dismissing the complaint on the merits at the end of the plaintiff's case. Amended judgment reversed on the law and the facts and a new trial granted, with costs to abide the event, without prejudice to defendants Fragola making an application, if they be so advised, to amend their answer. Plaintiff may testify to his negotiations with his customer, though in the absence of the seller, to show that he was the procuring cause of the sale. ( Melkon v. Kirk Co., 232 App. Div. 134; Meyers v. 650 Madison Ave. Corp., 259 App. Div. 109; Lockhart v. Hamlin, 190 N.Y. 132; Tanenbaum v. Nanes, 247 App. Div. 907.) The protection of section 347 of the Civil Practice Act does not extend to the seller, who is a stranger to the deceased buyer's estate, being neither "the executor, administrator or survivor" of the deceased. The second cause of action is brought against the Fragolas as individual conspirators, not on a partnership obligation, therefore Salvatore Fragola may not be regarded as the "survivor" of Albert Fragola with respect to this tort liability, within the meaning of section 347 of the Civil Practice Act. In the present state of the pleadings, however, plaintiff is not required to prove the conspiracy as to the defendants Fragola. Nolan, P.J., Johnston, Adel, MacCrate and Schmidt, JJ., concur. [See post p. 1024.]