159 N.Y.S. 381 | N.Y. App. Div. | 1916
The plaintiff sues for commissions earned under an employment to obtain for the defendant a purchaser for 550,000,000 cartridges, and under the terms of the employment as alleged, the amount of his commissions was to be a sum equal to the excess over forty-eight dollars and twenty-five cents per 1,000 at which plaintiff should sell or procure a purchaser for the cartridges. It is alleged that plaintiff procured one McPherson as a purchaser; that he was accepted by the defendant and a formal contract in writing was entered into between him and defendant on the 30th day of July, 1915, which is set forth in hcec verba in the complaint, by which the defendant was to receive fifty dollars per 1,000 for the cartridges. These allegations, if unqualified, would sufficiently show that the plaintiff’s commissions have been earned, for acceptance by defendant of the purchaser procured by plaintiff, evidenced by a formal contract in writing with him, would ordinarily relieve plaintiff from showing that the purchaser procured was ready, willing and able to perform, which is the rule with respect to brokers employed to procure a purchaser of real estate, and the principle would apply equally to the contract in question, if that were all. (See Kalley v. Baker, 132 N. Y. 1; Gilder v. Davis, 137 id. 504; Norton v. Genesee Nat. Savings Ass'n, 57 App. Div. 520; Charles v. Cook, 88 id. 81. See, also, Mutchnick v. Davis, 130 App. Div. 417, 419.) The plaintiff, however, further alleges that it was customary in the city of New York, where the contract was made, to provide in transactions of that character “that payment of the broker’s commissions should be made as the goods sold were delivered and paid for,
It follows that the order should be reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, but with leave to respondent to amend on payment of costs of the appeal and of the demurrer.
Clarke, P. J., Scott, Smith and Davts, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained,, with ten dollars costs, with leave to plaintiff to amend on payment of said costs.