Opinion
May, 1896.
Samuel W. Wilson, for appellant Strobel.
Wilson, Barker Wilson, for appellant Neusch.
Alexander Ash, for respondent.
The plaintiff, a real estate broker, sues to recover $220, being 1 per cent. commission on procuring a loan secured by first mortgage on property in East Sixteenth street, this city, belonging to the defendants.
The action proceeded upon the theory that the defendants were partners, and that there was a joint employment by them of the plaintiff to perform the services rendered. There is no proof, however, that the defendants were partners, other than an admission testified to have been made by Strobel that Neusch was his partner, a declaration which does not charge the latter, who was absent when the admission is said to have been made. Kirby v. Hewitt, 26 Barb. 607; McPherson v. Rathbone, 7 Wend. 216; Davidson v. Hutchins, 1 Hilt. 123. It is only after the partnership is shown to exist, by proof satisfactory to the court, that the admission of one of the parties is received in order to affect the others. 1 Greenl. Ev., § 177; Fogerty v. Jordan, 2 Robt. 319.
The Revised Statutes (1 Edm. R.S. 676, § 44) declare that: "Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy." In the absence of proof to the contrary; it must, therefore, be assumed that the defendants owned the property as tenants in common, and as such Strobel's act in employing the plaintiff did not bind his cotenant Neusch.
In Dobson v. Kuhnla, 49 N.Y. St. Repr. 735; 20 N.Y.S. 771, it was held that one tenant in common of an apartment-house cannot bind the others by any contract respecting the property without the consent of the others. The court said: "A tenant in common is not like a partner who has power to make contracts for the partnership. His rights as tenant in common are distinct; and, in the absence of an express authority, he is not responsible for what another tenant in common does as to the property owned by both." Corning v. Iron Factory, 39 Barb. 325; McCready v. Freedly, 3 Rawle, 251. In the case last cited, the plaintiff gave in evidence admissions made by one tenant in common, that he had authority from the others to make the contract; but the court said: "The agency was wholly unproved, and, of course, the declarations of the assumed agent were inadmissible." See, also, People's Bk. v. St. Anthony's Church, 109 N.Y. 512; 16 N.Y. St. Repr. 856; Deck v. Johnson, 1 Abb. Ct. App. Dec. 500.
The evidence sufficiently establishes that the plaintiff was employed by the defendant Strobel to procure a loan of $22,000 at 5 per cent. on the property; and that the plaintiff procured a person able and willing to make the loan at the rate stated, of which Strobel was notified. If he were the sole defendant a cause of action would have been established. Egan v. Kieferdorf, 16 Misc. 385; 38 N.Y.S. 81. But the liability charged is against Neusch as well as Strobel, and the justice found against both as upon a joint liability, and there cannot be an affirmance as to one and a reversal as to the other. Pollock v. Webster, 16 Hun, 104; Bradley v. Shafer, 64 id. 432; Goodsell v. Tel. Co., 109 N.Y. 147; Nat. Bd. of U. v. Nat. Bk., 146 id. 64. It is a fundamental rule that judgments shall be secundum allegata et probata, and as was said in Day v. Town of New Lots, 107 N.Y. 148, "Any substantial departure from this rule is sure to produce surprise, confusion and injustice." Romeyn v. Sickles, 108 N.Y. 652.
The only conversation had with Neusch was when he accompanied Strobel, at the latter's request, to the broker's office, and said he would not take a loan of less than $23,000. The plaintiff's principal declined to loan that amount, whereupon the transaction fell through.
It does not appear that Neusch had any notice or knowledge that Strobel had employed the plaintiff to procure the loan, or that there was any broker in the transaction, and the mere fact that he said he would not take less than $23,000 does not imply the knowledge necessary to hold him. He certainly did not acquiesce in what had been done, and a ratification to charge him must have been with full knowledge of all the material facts. Munroe v. Judson, 82 Hun, 215; Smith v. Tracy, 36 N.Y. 86.
The judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event.
DALY, P.J., and BISCHOFF, J., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.