72 A.D. 416 | N.Y. App. Div. | 1902
The plaintiff brings this action to recover $250 commissions, alleged to have been earned in the negotiation of a sale of certain real estate located at Say ville, in Suffolk county, this State. The complaint alleges ownership of the property in the defendant, and an employment to sell the same for the sum of $10,000, for which
Upon the trial of the action, plaintiff testified to the making of the contract of employment and performance on his part, bringing the said Carl Rietze and the defendant together and the making of a contract for the sale of the premises at the terms fixed by the defendant. This contract was in writing and, at the time of its execution, plaintiff, in behalf of Hr. Rietze, paid the defendant $50, the receipt of which was duly acknowledged. There is no dispute that this contract was made and executed, and the only question raised and which was submitted to the jury was whether the contract was actually delivered. Hr. Rietze failed to comply
The general rule is that when a broker, employed to negotiate a sale of real estate, brings to his employer a responsible purchaser, willing to buy upon the terms prescribed, he has earned his commissions. (Barnard v. Monnot, 3 Keyes, 203; Gilder v. Davis, 137 N. Y. 504, 506, and authorities there cited.) Where the contract of sale is executed between the employer and the purchaser, the right of the broker to his commissions does not depend upon the performance of the contract of the purchaser. If, from a defect in the title of the vendor or from a refusal to consummate the contract upon the part of the purchaser, for any reason in no way attributable to the broker, the sale falls through, nevertheless, the-broker is entitled to his commissions, for the simple reason that he has performed his contract. (Gilder v. Davis, supra.)
There is no allegation of fraud in the complaint, and, assuming-
The judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.