Add to footnote 5 (p. 71):
Mitchell v. Catlin Co., 71 Misc. 450; 128 N. Y. Suppl. 692 (1911); Simms v. St. John, 105 Ark. 680; 152 S. W. 284; 43 L. R. A. (N. S.) 796; McCoombs v. Moss, 181 S. \Y. (Ark.) 907 (1916).
On page 74, after "from the former12" add the following three paragraphs:
One broker cannot recover from another broker on a contract to divide commissions on the sale of real property, unless the commissions have been actually received by the broker whom it is sought to charge with liability.2
Where in an action by one real estate broker against another to recover an alleged agreed one-third of the commission received by defendant in the event of the sale, lease, or exchange of a certain parcel of real estate, it is undisputed that a lease of said parcel and another parcel was effected by defendant who received a commission, plaintiff is not entitled to one-third of the entire commission, but at most to one-third of the commission on the parcel covered by the agreement, and a verdict in favor of plaintiff for the full amount of one-third of the entire commission was held clearly against the weight of evidence and the judgment entered thereon was reversed and a new trial granted.3
.In such case, the remedy is not the equitable bill for discovery.
An agreement between one real estate agent with whom land is listed for sale to divide the profits with another agent if the latter procures a purchaser does not create a partnership between them.
1 Raeder v. Butler, 19 Pa. Super. Ct. 604 (1902).
2White v. Douglas Robinson, Charles S. Brown Co., 153 App. Div. 776; 138 N. Y. Suppl. 992 (1912).
3 Kraus v. Cammann, 95 Misc. 262; 158 N. Y. Suppl. 877 (1916).
Equity is without jurisdiction to compel an accounting since the remedy at law is adequate.4
Law (p. 76)
One who acts as renting agent for the owner of real estate, and also has control of the property may be convicted of a violation of Section 1275 of the New York Penal Law, making it a misdemeanor to fail to comply with the provisions of the Labor Law, in that he did not light properly a stairway leading to a bake shop in the cellar of a tenement house as required by the Labor Law, a provision of which reads that "The term 'owner' as used in this article shall be construed to mean the owner or owners of the freehold of the premises, or the lessee or joint lessees of the whole thereof, or his, her. or their agent in charge of the property." The court said: "There was evidence that the agent performed acts of control over the property. We think the evidence was sufficient to show that the defendant was more than a mere renting agent, and that he was the agent in charge of the property. Such an agent is amenable to prosecution under the statute. The question of intent in the violation of the statute is immaterial." But the conviction was reversed because of insufficient evidence that the place was not properly or adequately lighted.5
It has been held that an agent in charge of property with authority to collect rents and negotiate for and make minor repairs, but without authority to execute leases or to make such repairs or alterations as would be necessary to make the building conform to the requirements of Section 79b of the Labor Law, providing in part that no factory shall be conducted in any building if over two stories in height unless it be provided on each floor with at least two means of exit or escape from fire, is an "agent in charge of the property." within the meaning of said section, and may be punished for the non-observance of its provisions under Section 94 of the Labor Law and Section 1275 of the Penal Law.6
The court said: "I do not think that the fact that an agent for a building, like the defendant in the case at bar, may not have authority to make the required alterations is by any means decisive of the question. Section 79b does not provide that every tenant-fact shall be equipped with the two described means of exit on each floor.
4Wilson v. McVay, 193 III. App. 417 (1914).
5People v. Pullman, 166 App. Div. 99: 151 N. Y. Suppl. 741 (1915).
6People v. Pease & Elliman, Inc., 173 App. Div. 752, 758 (1916).
It provides only that no factory shall be conducted in any building theretofore erected unless the two means of exit shall be provided. It is not the failure to equip the building in the prescribed manner that violates the law, it is the maintenance of a factory in a building not properly equipped, and the violation can be terminated either by altering the building or by discontinuing the factory. Under Section 94 both the actual owner and the respective tenants are made responsible if a factory is conducted in a building in violation of Section 79b, and I think it is clear that the agent in charge of the building should likewise be held responsible.
"The agent knows whether the building complies with the requirements of Section 79b. He also knows whether the leases permit the tenants to conduct factories in the building. If factories are permitted in the leases in a building not conforming to the law there is no reason why the agent should not be held responsible. If a tenant conducts a factory without permission to do so in his lease in violation of the law the agent is sure to find it out and it is his duty to see that the violation is stopped. If he continues to act as agent for the building, knowing that the law is being violated there, he should also be held responsible for the violation. His liability is based upon the existing condition of affairs and not upon the owner's failure to make alterations."
Two of the five judges of the Appellate Division dissented, saying in part: "It seems to me that to hold, under these circumstances, that the defendant was an 'agent in charge of the property' is to strain the language of the statute beyond all reason. An agent 'in charge of property must mean an agent who has some authority and responsibility regarding it, and when an agent is sought to be held criminally liable for having failed to do something regarding the property, it should at least appear that the terms of his agency were such that he had the power to do that for the non-doing of which he is sought to be punished as a criminal. It is no answer to say that he ought to insist upon having such power, for the terms of an agency are in general, to be determined by the principal. The act is doubtless a highly beneficial one which should be strictly enforced, but not by prosecuting as violators persons who had no power of compliance, and are, therefore, innocent of wrongdoing."