15 Misc. 645 | City of New York Municipal Court | 1896
From an examination, of the- evidence it-appears that the original agreement between the plaintiffs and defendant took place in the latter part of .October or the first .of November, and after certain' negotiations the contract for the exchange contemplated was signed November 9, 1893. . In the absence of any special agreement at this time these plaintiffs, upon the production. of a purchaser or customer ready, willing and able to make the exchange as contemplated, became entitled to the commission agreed upon, to wit, one per cent less the fifty dollars for a present to the defendant’s ' wife. Nor could the plaintiffs be- deprived of their commission by reason of any caprice or humor of the defendant if the other party came within the requirements as stated.
. This being the law, in the absence of some special agreement, thé plaintiffs were entitled to recover. On th.e trial, however,
“ No commissions to be paid to us by Geo. Hornberger unless deeds to said premises pass, unless Hornberger’s title should prove on examination unmarketable, in which event he is to pay the commission, to wit, $400. ■
“ Dated, November 10,• 1893.
“ E. B. Potash,
“ Max I. Lefkowitz,
“ Jos. MoSkowitz,
“ A. Roll.”
We think this- agreement' was without consideration and ■ . thus- null and void, and' did not destroy the plaintiffs’ cause of action. Where under the. original agreement the broker is entitled to his commission when he has produced a purchaser ready, willing and able to enter into- a contract, a subsequent agreement by the broker, in consideration of the execution of siich contract, not to claim or demand commissions until delivery of the deed is without consideration and cannot affect .the obligation of the vendor to pay them. McComb v. Von, Ellert, 7 Misc. Rep. 59.
This contract of November 10, 1893, being void, left the plaintiffs to pursue their remedy on the same cause of action pleaded. But the plaintiffs, disregarding the fact that the contract just spoken of was void, and accepting it as a valid and binding obligation,-proceeded to try the case, not on the cause . as set up in the pleadings, but asked and obtained leave against objection and exception to amend the complaint in an effort • • to meet this void agreement. This was in our judgment error, since it was proceeding upon an entirely distinct and different causé from that alleged in the complaint, and a recovery here cannot-.be claimed as seov/ndum allegata et pro- - bata. It is apparent, too, that:the justice,- in rendering his decision,, based it entirely upon the agreement which we have declared void. The original cause of action was to effect an exchange of the defendant’s property for certain property in Twelfth street. - It was immaterial in the absence of a special
Without passing upon the other questions raised, we deem these errors sufficient. The judgment is, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Wyck, Ch. J., and Scotchman, J., concur.
Judgment reversed and new trial ordered, with costs to" appellant to abide event.