153 N.Y.S. 421 | N.Y. App. Term. | 1915
Plaintiff, as a real estate broker, sues for his commis_ sion in having procured a purchaser for the property of defendant. It appeared that defendant had agreed to buy property in the Bronx belonging to one Archer, but had not as yet obtained title or possession in May, 1914. Being desirous, however, of selling this property, he authorized plaintiff to find a purchaser. Negotiations were ultimately closed, defendant to give the property he was about to purchase a valuation of $8,500, and to take from the firm of Dolían & Scalere lots in New Jersey at a valuation of $4,000, subject to a mortgage of $2,000, or a net value of $2,000, and a balance in cash of $6,500. This arrangement was made on May 9th, and Dolían paid defendant $100 as a binder. Title was to be closed on May 15th, and the contract to be drawn on May 11th at the office of Mr. Smith, Archer’s attorney. On May 11th all the parties met in Mr. Smith’s office. Flateau, Dollan’s attorney, examined the contract of sale which had been drawn by Mr. Smith, and found that it provided that the “said premises hereby sold will be conveyed subject to a lease expiring on June 1, 1914.” Plateau’s clients, whom I shall call the purchasers, desired to enter into possession without doubt on June 1st, and, though they were willing to adjourn the closing until that date, were not satisfied with the contract, because it showed the incumbrance of this lease; nor were they
A careful examination of the charge of the learned judge below and of the several requests of counsel makes it plain that the issues involved were not clearly appreciated, and of course, therefore, were not submitted to the jury for determination. On the charge as delivered, and as modified by the various requests, it cannot be said that any recovery was warranted or sustainable. Adequate exception having been taken, at least to presenting the errors in the charge, the interests of justice require a new trial, but, in view of the circumstances, without cost to either party against the other.
Judgment reversed, and a new trial ordered, without costs of this appeal to either party.
GUY, J., concurs.