McNeilly v. Rogers

58 A.D.2d 724 | N.Y. App. Div. | 1977

peal from (1) an order of the Supreme Court at Special Term, entered November 24, 1976 in Washington County, which granted plaintiff’s motion, pursuant to CPLR 3213, for summary judgment in lieu of a complaint and (2) the judgment entered thereon. This is an action to recover a real estate commission allegedly earned by plaintiff under a real estate broker listing agreement whereby defendant purportedly agreed to pay a commission to plaintiff upon plaintiff’s procuring a purchaser for certain property at the stated price and terms or at any other price and terms acceptable to defendant. As noted above, Special Term granted plaintiff’s motion for summary judgment in lieu of a complaint, pursuant to CPLR 3213, and this appeal ensued. The order and judgment appealed from must be reversed. For plaintiff to prevail on his motion, his action must be "based upon an instrument for the payment of money only” (CPLR 3213), and, as such, he must be able to prove a prima facie case merely by proof of the instrument and defendant’s failure to make payments in accordance with its terms (Interinan Ind. Prods, v R. S. M. Electron Power, 37 NY2d 151; SeamanAndwall Corp. v Wright Mach. Corp., 31 AD2d 136). In this instance, however, additional proof dehors the instrument is necessary for plaintiff to succeed, as, for example, he must establish that he has procured a purchaser for the subject property at the contract price and terms or other acceptable price and terms. Order and judgment reversed, on the law, without costs. Greenblott, J. P., Sweeney, Kane, Mahoney and Main, JJ., concur.