50 N.Y.S. 128 | N.Y. App. Div. | 1898
This action was commenced against one Henry Knickerbacker, but, he having died before trial, it was revived and continued against his, executrix to recover co missions alleged-to have' been earned by the plaintiffs, real estate- brokers, in procuring a' purchaser for certain real estate.
The plaintiffs based their right to recover upon a contract -alleged to have been made by them with the defendant’s testator, in' and -by which he promised to pay -to them a commission of .one, per cent oftlie purchase price for procuring a -purchaser of his residence, situate in the city Of New York, and services rendered by them in pursuance thereof, in procuring a purchaser who was ready, able and Willing to purchase at a price which was satisfactory to the testator,, and who, entered into a contract with him. The answer interposed . denied all the material allegations of the complaint.
Upon the issue thus formed the parties' went to trial, and' it there appeared that in June, 1894, Henry Knickerbacker, defendant’s testator, employed these plaintiffs to negotiate a sale of certain real ■ estate on Fifth, avenue and Sixty-fourth street, in the city of New York, and that thereafter these plaintiffs, in pursuance of that employment, endeavored to procure a purchaser, but nothing was accomplished until the twenty^seventh of July of that year, when, as a result of negotiations had with one John T. Martin, one of, the plaintiffs (Montgomery) was authorized to make an offer for the property, as appears from the following memorandum: “ I authorize Mr. Montgomery to offer $220,000 for Mr. Knickbacker’s housey cor. 64th St. & 5th av. July 27, ’94. (Signed) John T. Martin.” ■ The next, day Montgomery communicated with, defendant’s testator, with
The plaintiffs’ right to commissions depended on their bringing the buyer and seller to an actual agreement— not a prospective or contemplative one. They were required to produce a purchaser who was ready and willing to enter into a contract on terms satisfactory to their employer, and until they had done that they were not entitled to commissions. (Sibbald v. The Bethlehem Iron Company, 83 N. Y. 318; Condict v. Cowdrey, 139 id. 213.) This they did not do. The defendant’s testator was, so far as the evidence discloses, willing-to sell on the terms proposed, but Martin was not willing to purchase. It was not the fault of defendant’s testator that the sale was. not made; indeed, it is not even suggested that any act or omission on his part in any way prejudiced or affected the successful consummation of the negotiations entered into by the plaintiffs with. Martin. The plaintiffs, therefore, were not entitled to commission.
But it is urged by plaintiffs’ counsel that the memorandum signed by Martin was a contract which defendant could enforce. We do
"Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.
Exceptions overruled and motion for new' trial denied, with costs.