129 N.Y.S. 26 | N.Y. App. Term. | 1911
The plaintiffs brought this action to recover the sum of $400 as brokers’ commissions. It is undisputed that the plaintiffs were employed by the defendant, at first, to procure a tenant for certain premises owned by him, and that he agreed that if the premises were leased he would pay the plaintiffs $200 commission therefor. The plaintiffs procured a proposed tenant; but, when the parties met, they failed to agree upon the terms of the lease, and none was made. The plaintiffs claim that the failure to make the lease was by reason of the defendant having imposed other conditions than those given them, and through no fault of theirs. Subsequently the defendant authorized the plaintiffs to procure a purchaser for the premises, and it is the claim of the plaintiffs that the defendant agreed, if they found 'a purchaser, to pay them the $200 claimed to have been earned by them as commissions for procuring a tenant, and also the sum of $200 for securing a purchaser. The plaintiffs obtained a purchaser, and he and the defendant entered into a written contract of sale. The contract described the lot as follows:
“The lot is 25 feet front by 100 feet on both sides. In the rear of the said premises there is missing about three (3) feet on one side.”
When the title was examined, it was ascertained that the dimensions were not as the contract provided for. The proposed purchaser refused to take title for that reason, and brought an action against the defendant to recover the sum of $500 deposited when the contract was executed, and recovered a judgment therefor. The issue tendered by the defendant upon the trial was a denial that he had promised the plaintiff to pay their claim for $200 commission for procuring a tenant, and an affirmative claim that the plaintiffs were not to become entitled to commission on the sale “if the deal did not go through.” If the question as to whether or not the defendant recognized the plaintiffs’ right to commissions for procuring a tenant, and therefore promised them $200 therefor in case they made a s'ale of the property, was the only issue, it might be said that, the jury having found in favor of the defendant on conflicting evidence, their verdict on that question would not be disturbed.
We think, however, that the position taken by the defendant, that the plaintiffs were not entitled to commissions upon the sale of the property for the reason, as stated by respondent in his brief, that “the deal did not go through,” is untenable. The plaintiffs procured a pur
Judgment reversed, and new trial ordered, with costs to appellants to abide the event.
