152 N.Y.S. 995 | N.Y. App. Term. | 1915
The action is to recover broker’s commissions for procuring a purchaser of real estate. The plaintiff procured a purchaser on the defendant’s terms, but on the day fixed for the signing of the contract, and before it was executed by the vendor and vendee, the
“We hereby agree, in consideration of the making of the contract this day, between Fulson Realty Company and Progress Holding Company, and as part of the said contract, that our commissions for the sale of the premises on Tinton avenue and 150th street for the Fulson Realty Company is not to be paid until the closing of the said contract and the payment of the consideration by the Progress Holding Company.”
The deed was not delivered by the vendor at the time fixed in the contract, the closing was adjourned from time to time, and the title never passed because of the inability of the vendor to convey in accordance with the terms of the agreement.
At the close of the plaintiff’s case the learned trial judge dismissed the complaint, for the reason that the plaintiff failed to prove a tender by the vendee to the defendant, although the evidence showed that the vendee had made a contract with one Wartell to sell him the property in question, and that Wartell’s attorney tendered the money to the defendant.
The ruling was erroneous. The plaintiff earned his commissions when ,he procured a purchaser ready, able, and willing to buy the property on the defendant’s terms, and there was no consideration for the plaintiff’s alleged subsequent promise to wait for. his commissions until the closing of the contract and the payment of the consideration. Connor v. Munsees, 145 N. Y. Supp. 891; Tanenbaum v. Boehm, 202 N. Y. 293, 95 N. E. 708.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.
