120 N.E. 692 | NY | 1918
This is an action to recover for services rendered by a broker in procuring a purchaser for real *353 property owned by the defendant. At the trial each party moved for the direction of a verdict. The defendant's motion was denied and the plaintiff's was granted. The Appellate Division reversed the trial court and dismissed the complaint. The trial court was justified in finding that George H. Ohnewald, plaintiff's secretary and treasurer, was employed by defendant in January, 1912, to sell certain real estate in the borough of Brooklyn, and that thereafter he found a purchaser ready, willing and able to perform upon satisfactory terms, and that on May 2, 1912, as the result of the services thus rendered by him, a contract of sale was entered into between the defendant and the purchaser. This contract contained the following clause: "The seller agrees that Mr. Ohnewald of Reis Co., brought about this sale and agrees to pay the broker's commission therefor and who shall be entitled to his commission upon passing of title as agreed."
Ohnewald assigned to plaintiff his right to the compensation to be paid under the contract. Title to the premises never passed.
The Appellate Division holds that as matter of law "the only evidence of an employment or agreement to pay commissions is furnished by the clause in the contract quoted above, which was introduced in evidence by the plaintiff under that clause. The defendant did not become obligated to pay a commission until the passing of title. It was shown that the title never passed, and consequently the plaintiff was not entitled to the commissions."
At the time the contract of sale was signed, Ohnewald had procured a purchaser and his right to his commissions had accrued. (Gilder v. Davis,
It follows that the judgment of the Appellate Division should be reversed and that of the Trial Term affirmed (Larkin v.N.Y. Tel. Co.,
HISCOCK, Ch. J., CHASE, HOGAN and CARDOZO, JJ., concur; MCLAUGHLIN, J., dissents; ANDREWS, J., absent.
Judgment reversed, etc.