Misc.] Supreme Court, Appellate Term, June, 1900. FRANK E. MAINHART, Respondent, v. EDWARD R. POERSCHKE, Appellant. (Supreme Court, Appellate Term, June, 1900.) Principal and agent — Unless the minds of the contracting parties meet, the broker cannot recover commissions. A real estate broker is not entitled to commissions upon an alleged procurement of an exchange of real estate, where the minds of the parties have never met upon the time when the client of the broker should yield possession of his premises to the other party - the actual possession of them being in a tenant, as the broker knew at the time he was negotiating. APPEAL by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, upon a trial had before the court without a jury. The action was for broker's commissions. Fromme Brothers, for appellant. Frank E. Hipple, for respondent. Per Curiam. The judgment under review is sought to be upheld upon the ground that the plaintiff produced one Stern, who was ready and willing to exchange his property, situate in Mount Vernon, in the State of New York, for the defendant's premises, known as No. 234 West One Hundred and Thirty-sixth street, in the borough of Manhattan, upon the terms named by the latter. While it is true that, through the plaintiff's efforts, the parties did agree upon a sum which was to be paid to the defendant for the difference in the equities of the lands to be exchanged, yet the record discloses that the minds of the parties never met with respect to the time when possession of the premises owned by the defendant should be given. This, even according to the testimony offered in behalf of the plaintiff, was still an open question when the parties agreed to meet at the office of the attorney for the defendant upon the following day. When they met it was discovered that the tenant, who then occupied the premises owned by the defendant, refused to waive service of ninety days' notice to vacate Supreme Court, Appellate Term, June, 1900. [Vol. 32. the same, in case of a transfer of title, to which notice she was entitled by the terms of her lease. The defendant then refused to enter into a contract, unless Stern would stipulate to take the premises subject to such outstanding lease. The latter declined to do so, and the transaction fell through. The plaintiff knew of the existence of this provision of the lease while he was engaged in his negotiations. Since this was an implied contract for the services of a broker, his right to commissions was dependent upon his bringing the minds of the parties to an agreement (Byrne v. Korn, 25 Misc. Rep. 509), and having failed to do so it is obvious that the rendition of the judgment in his favor was erroneous. It follows, from these views, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. Present: BEEKMAN, P. J., GIEGERICH and O'GORMAN, JJ. Judgment reversed and new trial ordered, with costs to appellant to abide event. INETTA BARNETT, Respondent, v. THE METROPOLITAN STREET RAILWAY CO., Appellant. (Supreme Court, Appellate Term, June, 1900.) Judgment Admissibility, on appeal, of record evidence to support. Where the record of the trial of an action for negligence in the Municipal Court of the city of New York does not show that, at the time of the accident, the defendant was a domestic corporation, having its principal place of business in the city of New York - a fact necessary to jurisdiction in that court - the plaintiff may, in support of her judgment, supply the defect, on appeal, by introducing on the argument a certified copy of the certificate of the defendant's incorporation. APPEAL from a judgment of the Municipal Court of the city of New York, eleventh district, borough of Manhattan, entered on a verdict of a jury, in favor of the plaintiff. Henry A. Robinson, for appellant. J. Baldwin Hands, for respondent. Misc.] Supreme Court, June, 1900. Per Curiam. The brief of the appellant states that this appeal was taken in order to raise the point that there is no proof in the case that the defendant was at the time of the accident, a domestic corporation, with its principal place of business in the city of New York, and that, therefore, the plaintiff has failed to show that the defendant was within the jurisdiction of the Municipal Court of New York. Since the appeal was taken, the plaintiff has served upon the defendant a notice that she would produce before this Appellate Term a certified copy of the certificate of incorporation of the defendant, in order to support the judgment. This the plaintiff had a right to do. It may be that the court could take judicial notice of the fact that the defendant is a domestic corporation, and that its principal place of business is in the city of New York, but, in any event, it has frequently been held that an omission, in proof, of a matter of record may be supplied on appeal to sustain a judgment, when a record cannot be answered or changed. Dunford v. Weaver, 84 N. Y. 445; Day v. Town of New Lots, 107 id. 148; Dunham v. Townshend, 118 id. 281. Judgment appealed from is affirmed, with costs. Present: TRUAX, P. J., SCOTT and DUGRO, JJ. Judgment affirmed, with costs. Matter of THE GRADE CROSSING COMMISSIONERS OF THE CITY OF BUFFALO, for the Appointment of Commissioners, etc., Proceeding No. 34. (Supreme Court, Erie Special Term, June, 1900.) Buffalo Grade Crossing Act Consequential damages recoverable by abutting owner - Application made after confirmation of report and payment of award into court. Under the Grade Crossing Act relative to the city of Buffalo, an abutting owner may recover consequential damages caused to her premises by a change of grade, although the premises themselves were not taken for the improvement. Where the said grade crossing commissioners made a single award as consequential damages resulting to a parcel comprising two pieces of property described separately but did not make the former owner Supreme Court, June, 1900. [Vol. 32. of one of the pieces, which was subject to a mortgage, a party to the proceeding, she having been informed by their counsel that it was not necessary, as, if the ownership of an award was disputed, the award would be made to unknown parties, and be paid into court, the court at Special Term considered that she might be entitled, under the said grade crossing act, and perhaps, not otherwise, to such damages as accrued to her piece, from the change of grade, up to the time when her title was divested by the foreclosure of said mortgage, and therefore permitted her, in the interests of justice, notwithstanding the confirmation of the report of the commissioners and the deposit of the award in court, to make herself a party to the proceeding, vacated the order of confirmation in so far as it concerned the said award, instructed the commissioners to award separately as to the separate pieces of the parcel, and directed them to hear and determine whether the former owner was entitled to any consequential damages to her piece of the said parcel. MOTION by Louise W. Ruchte to be made a party to this proceeding, and to vacate and set aside the report of the commissioners herein, as regards parcel No. 5. The Grade Crossing Act relative to the city of Buffalo is Laws of 1888, chapter 345, as amended by Laws of 1890, chapter 255, and Laws of 1892, chapter 353. Cadwell & Barker (George H. Frost, of counsel), for motion. John Laughlin, opposed. KRUSE, J. This proceeding was instituted under the provisions of the Grade Crossing Act, so-called, which empowers the commissioners to acquire lands for the purpose of carrying out the purposes of the act. Section 12 of the act provides, among other things, that if the commissioners shall decide it necessary, for the purpose of carrying out any plan or modification or alteration of a plan adopted by them, that any street shall be closed or discontinued, or that the grade of any strect or portion of any street or public ground shall be changed, and that any property may be injured thereby, for which the owners or persons interested therein are lawfully entitled to compensation, or that any land shall be taken incident to the changes of the grade of any street, or to widen any street, the Mise.] Supreme Court, June, 1900. commissioners, by their chairman, may apply to the Special Term of the Supreme Court for the appointment of three commissioners. It appears by the original petition presented by the commissioners in this proceeding that a plan was adopted by the commissioners, and that thereafter the commissioners decided that certain property therein specifically referred to might be injured by the change of the grade, for which the owners or parties interested therein are lawfully entitled to compensation, among other premises, parcel No. 5, which, according to the petition, is described in two distinct and separate parcels, in the first of which the moving party, Louise W. Ruchte, claims she had some right or interest at the time when the improvement in carrying out the plan of the commissioners was made. It appears, however, that in the report of the commissioners the award was made in one sum for both pieces. The moving papers show that Louise W. Ruchte acquired title to this piece of land on the 2d day of January, 1896; that the conveyance to her was made subject to a mortgage given by the former owner, Adah A. Hyer. Louise W. Ruchte was in possession until sometime in December, 1897, when her title was divested by a sale of the premises under a judgment of foreclosure of the mortgage given to Adah A. Hyer. It is claimed that during the time that Louise W. Ruchte was the owner and in possession of the premises, the commissioners caused the grade of the street in. front of the premises to be changed, and did other injury to the premises, in carrying out the plan so adopted by them, and that she is entitled to the damages sustained to the premises accruing up to the time that she ceased to be the owner thereof. The damages awarded for these two pieces, known as parcel No. 5, were made payable to George H. DeGrood, who acquired the title under the foreclosure proceeding, and Adah A. Hyer, the holder of a judgment which was a lien upon the premises, amounting in the aggregate to the sum of $5,065; $316.08, with interest, at the rate of six per centum, from June 19, 1898, was directed to be paid to Adah A. Hyer, and the remaining sum of $4,748.92 to George H. DeGrood. Louise W. Ruchte was not made a party to the proceeding, and her attorneys were informed by counsel for the commissioners that it was unnecessary for her to be made a party; that in all cases where there was a dispute as to the ownership of any award, it was the custom and practice to award the damages to unknown owners, and the same was then ordered paid into court, |