122 N.Y.S. 225 | N.Y. App. Div. | 1910
Lead Opinion
This action was to recover for services rendered by the plaintiff for the defendant, the complaint alleging that the plaintiff and one Markowitz procured a proposition to trade certain real property situated on Ninetieth and Ninety-first streets and Central Park West for certain real property on the easterly side of Gramercy Park in the city of New York, in which said premises the defendant had an interest, and that Markowitz had assigned his claim against the defendant to the plaintiff. The defendant denies the allegations of the Complaint except that he admits that in May, 1905, he was one of .the owners of a plot of ground on the easterly side of Gramercy Park in the city of New- York.
On the trial the plaintiff testified that he was a real estate broker and knew the defendant; that between February and April, 1905, he had a-conversation with the defendant, in which the defendant said that his Gramercy Park property did not produce anything, and he would like to change it for something that was productive; that he wanted nothing but high-class property, elevator apartment houses, to be of fireproof construction, and that if the plaintiff succeeded in this he would pay him one per cent commission. After this con versation plaintiff submitted several pieces of property to the
On behalf of the defendant testimony was offered that while the parties negotiated about the purchase of this building it was all dependent upon the amount of the mortgages that' Signed could get, and that the defendant expressly said that it would be quite ' impossible for him to pay any considerable amount in cash at- that time. Mr. Bogers, the attorney who appeared at the office the day after this conversation, testified that he was a relative of the defendant ; that he has no recollection of being at the lawyer’s office at the' time and had no recollection of the transaction at all. The defendant testified that Signed had telephoned to him that the deal was off because lie, Signed, could not get the mortgages that were contemplated. Signed was recalled and testified' that he had no recollection of having sent such a message to tlie defendant, and that he did not know positively whether he telephoned him or not; that he could not ted. At the end of ad the testimony the defendant made a motion to dismiss the complaint which was denied, and the defendant excepted. The court then charged the jury that if the plaintiff did produce a man who was willing to exchange his property for the defendant’s Gramercy Park property who .agreed with defendant’s- terms so that both parties were satisfied and there was nothing left to do to carry out this contract which existed verbally
The only question presented is whether this verdict was sustained by the evidence, and I am inclined to think it was not. The plaintiff was required to produce a man who was willing to exchange his property for defendant’s Gramercy Rark property upon terms to which the defendant would agree. It is quite evident that he did not procure a man who was able and willing to make such an exchange. The defendant owned a piece of' property valued at $175,000, which was subject to a mortgage of $75,000. The customer that plaintiff produced was to convey an apartment house for $1,200,000, subject to a mortgage of $900,000; defendant to give additional mortgages of $100,000; was to pay $50,000 in cash and $55,000 in notes which were also to be secured by a mortgage upon the property. It. is quite clear that the purchaser procured by the plaintiff was not at the time of the negotiations able to convey the property subject to this mortgage. He had not secured the $900,000 mortgage upon the property and he never did secure that mortgage. It is true that condition was discussed and it was understood that the defendant was. to give an additional mortgage of $100,000 if Signell was unable to obtain a mortgage for more than $800,000, but it is quite clear that there were no definite terms fixed upon which the properties could be exchanged. It was still a tentative proposition which had not been positively accepted by either party and which either party was entitled to refuse to cany out. There is testimony that it was the customer procured by the plaintiff who stated to tlie'defendant that the deal was off and that customer when called would not contradict that statement. Taking the whole testimony together it seems to me. that it is impossible to say that any definite arrangement was arrived at so that it could be said that the plaintiff procured, a customer who was ready and willing to carry out the exchange upon the defendant’s terms.' Thus upon well-settled principles of law plaintiff was not entitled to recover. Signell was not as a matter of fact able to carry out-this contract or really to make a contract upon the terms proposed as he did not have mortgages on his property for either $800,000 or $900,000.
■ For that reason the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
McLaughlin and Dowling, JJ., concurred; Laughlin and Miller, JJ., dissented.
Dissenting Opinion
I am of opinion that the verdict upon which the judgment was entered herein is fairly supported by-a preponderance of the evidence. According to the testimony of the plaintiff and of a disinterested witness, one Signed, who owned the El Dorado apartment house on Central Park West, with whom defendant, through the plaintiff, had negotiations for the exchange of said apart-, ment house for á parcel of land represented as owned by defendant on Gramerey park, the minds of the parties met with respect to all of the terms of the exchange of their properties, and it wras agreed that they should meet at a specified hour on the following • day in .the office of the attorney for Sign ell and execute a formal contract for such exchange, and the defendant agreed to and did have his attorney, one Rogers, there, but defaulted in appearing personally, as agreed, and failed to consummate the contract. The»; testimony of these witnesses upon the material point that an' agreement was reached with respect to all of the terms of the exchange of the properties is flatly controverted by the testimony of the defendant and one Simon who was interested on account of being a tenant in common with the defendant of an undivided half of the Gramercy Park property and was also the defendant’s brother-in-law. With respect to the parties all having met in the office of Signell’s attorney pursuant to appointment to execute the formal contract, Signell’s attorney testifies unqualifiedly to the presence of Rogers, claiming to appear for and to represent the defendant and that they went over a draft of contract together and agreed Upon certain changes and alterations, and that defendant
The defendant was desirous of exchanging the Q-ramcrcy Park property for improved property and employed the plaintiff as a
Miller, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.