Levy v. Sonneborn

138 N.Y.S. 285 | N.Y. App. Term. | 1912

Crane, J.

This is an appeal from a judgment for $187 and costs recovered as commissions for the sale of property 74 East One Hundred and Sixteenth street in the borough of Manhattan. The defendant is an executor of the estate of Simon Herman and the plaintiff claims to have been employed by him to procure a purchaser for the property. Upon two grounds this judgment must be reversed; first, because the findings of the trial court are against the weight of evidence; second, assuming the plaintiff’s testimony to have been correct, he did not procure a purchaser to buy at the terms and conditions of the seller — there was no meeting of the minds.

As to the first ground, the plaintiffs’ assignor and the broker in the transaction testifies that Herman the defendant employed him in these words, referring to 74 East One Hundred and Sixteenth street: “ See what you can do with that. It is 20x100 — a single flat and the price is $17,000.” When asked on cross-examination if he had not been told that no commissions- were to be paid until and unless the title was passed he replied that he could not remember —: he didn’t know. This broker, Pierre M. Clear, was the only witness for the plaintiff as to the employment. For the defense lawyer Greenhall and the executors Herman and Sonneborn testified that the broker was told that the property was being sold to close out the estate and that no commission would be paid unless title passed.

Upon this evidence judgment should have been given to the defendant.

But, assuming that the broker was to be paid if he procured a purchaser to meet the terms and conditions of the seller, he failed in his employment.

The terms given him were very general and could not have been understood by him to have been complete. Seventeen thousand dollars cash, twenty by one hundred, is all that was said about the property. It is almost as indefinite as describing property by street number. Certain reasonable particulars were left to the making of the contract. Thus when the seller and proposed purchaser met, the contract contained the description as twenty by one hundred more or less, and excepted party wall agreements and any defect a survey might show. The executors were justified in thus protecting themselves and were not expected to detail all these matters to the broker unless asked. The purchaser was not obliged to sign any such contract but if he did not the broker had not procured a purchaser willing to buy at the. seller’s terms and conditions. The party wall agreement and survey were subsequently waived by the executors, leaving only the objectionable description “ 20x100 more or less.”

This was not such a modification of or departure from the terms given to the broker as to justify a recovery by him upon his purchaser’s refusal to take. Ranger v. Leo, 66 Misc. Rep. 144; Keough v. Meyer, 127 App. Div. 273; Diamond & Co. v. Hartley, 38 id. 87; Arnold v. Schmeidler, 144 id. 420.

Judgment is reversed and new trial granted, with costs to abide the event.

Putnam and Aspinall, JJ., concur.

Judgment reversed.