245 A.D. 643 | N.Y. App. Div. | 1935
The plaintiff, a broker, recovered judgment in the City Court for a balance of commissions alleged to have been earned on the sale of the defendant’s real estate. The judgment was affirmed by a divided court in the Appellate- Term.
The plaintiff procured a purchaser who entered into a contract with the defendant on which a deposit of $2,500 was paid and whereby title was to close on February 2, 1931. On the execution of that contract the defendant paid $500 to the plaintiff. On February 2,1931, the parties met to close title. The seller’s executed deed was ready for delivery and the purchaser was prepared to pay the consideration stipulated in the contract of sale. It was then ascertained over the telephone by the title company representing the purchaser that three days previously, without the defendant’s knowledge, a lis pendens had been filed against the property. A stipulation was thereupon made adjourning the date of closing to February fifth. On the adjourned date, the Us pendens still existing, the parties met again to close title. What occurred at that time appears from the testimony of the attorney for the purchaser, who was called as a witness for the plaintiff. From his testimony it is clear beyond the point of contradiction that the defendant was ready and willing to convey the property to the purchaser in accordance with the contract of sale. It is equally clear that the purchaser was unwilling to perform and that, as the attorney testified, he “ rejected the title ” in the belief that the existence of the Us pendens constituted an adequate objection. That impression seems also to have been shared by the defendant, whose attorney suggested when title was rejected, that he would attempt to arrange an adjustment with respect to the deposit paid on the contract, the counsel fees and other obligations incurred by the purchaser in connection with the sale. All these were subsequently repaid to the purchaser by the defendant. This action was to recover the balance of $1,500 commission alleged to be due.
The Appellate Term was unanimous in holding upon the authority of Simon v. Vanderveer (155 N. Y. 377), that the mere existence of the lis pendens did not justify the purchaser in rejecting title because the complaint on which the Us pendens was founded was thereafter dismissed as insufficient in law. A majority of the Appellate Term were, however, of opinion that the defendant had failed in his duty to the plaintiff in that he had acquiesced in the purchaser’s refusal to take title for reasons which were found to be inadequate.
We think that this conclusion imposes on the seller a burden which he has not assumedVhere the broker’s right to commissions is conditioned on the closing of title. The rule is established by the
Applying these principles to the case at hand, we think the defendant is not liable for brokerage. Concededly, at the time of closing, he was ready, able and willing, and, concededly, also, the purchaser was unwilling, to perform the contract of sale. Under these circumstances the defendant was not under the necessity of making any tender of the deed in order to put the purchaser in default. (Bigler v. Morgan, 77 N. Y. 312.) After the purchaser had rejected title, such a tender would have been an obvious futility, (Strasbourger v. Leerburger, 233 N. Y. 55.) While the contract of sale was alive the defendant had not consented to its cancellation as he had in Zittel & Sons v. Schwartz (192 App. Div. 353), upon which the plaintiff relies. He had, therefore, not excused performance by the purchaser and was himself willing, and apparently anxious, to perform. Was the defendant under any obligation to do more, after the condition on which the plaintiff had staked his right to commissions had failed of fulfillment without fault on the defendant's part? When that occurred the defendant might, it is true, have retained the deposit. He might have refused to pay the purchaser’s expenses incurred in connection with the sale. But he was under no duty to the broker to do so. The contract of sale had been abrogated by the purchaser. Non-performance by the purchaser was an existing fact creating certain rights in the defend
The determination of the Appellate Term and the judgment of the City Court should be reversed and the complaint dismissed, with costs to the defendant in all courts.
Martin, P. J., Merrell, McAvoy and O’Malley, JJ., concur.
Determination of the Appellate Term and judgment of the City Court reversed and the complaint dismissed, with costs to the defendant in all courts.