22 A.D.2d 911 | N.Y. App. Div. | 1964
In an action to recover a real estate brokerage commission, the plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered August 9, 1963 after a nonjury trial, upon the court’s opinion and decision in favor of the defendants, dismissing the complaint. Judgment affirmed, with costs to the respondent Elizabeth Krumm. The property was owned by the two defendants, husband and wife, as tenants by the entirety. It is undisputed that the plaintiff broker Was retained by the husband alone to find a buyer for the property. It appears from the record that the broker knew: (1) that the property was owned by the defendants as tenants by the entirety; (2) that they had theretofore been separated from each other; (3) that the proposed sale to a builder, as negotiated by the broker, was made “ Subject to village approval of plans of Builder for apartments on site”; and (4) that the offer was “cancellable within one week from date”. It further appears that such conditions were not acceptable to the wife and that she never consented to the proposed sale upon these terms. Under the circumstances, she cannot be held liable for the commission allegedly earned by the broker. Nor, upon this record, may the husband be east in liability to the broker. It was incumbent upon the broker to produce a purchaser ready, able and willing to purchase the property on terms acceptable to both owners. Since proof is lacking that the broker produced such a purchaser, this action must fail as against the husband, as well as against the wife. Beldoek, P. J., Brennan and Hopkins, JJ., concur; Ughetta and Kleinfeld, JJ., concur in affirmance of the judgment insofar as it relates to the defendant wife, but dissent and vote