212 A.D. 823 | N.Y. App. Div. | 1925
Judgment and order unanimously affirmed, with costs. The undisputed evidence establishes that there was no merger of the commission agreement in the contract of sale. The very language of the commission agreement shows that the contract of sale was theretofore made, even though on the same day. This is without dispute. Nor does the sealed instrument rule affect plaintiff’s claim. The contract of sale under seal is not the subject of litigation. That contract was undeniably carried out and completed. Plaintiffs claim is based upon a collateral and wholly independent agreement to pay him a specific sum, and a recovery by him on such agreement is not affected by the identity of the real purchaser, in the absence of a claim of fraud, which is not here advanced. Present — Kelly, P. J., Rich, Jaycox, Manning and Kapper, JJ.
