Spitzer v. Londa Realty Corp.

8 A.D.2d 713 | N.Y. App. Div. | 1959

Order unanimously affirmed, with $20 costs and disbursements to the defendants-respondents, with leave to plaintiff to serve an amended complaint. In this action for brokerage commissions the complaint alleges that after plaintiff broker had refused to agree to “ kick back ” the bulk of his commission to the prospective buyers, they conspired with the seller to deprive him of his commission by having the property transferred to one of the buyers on the representation that the other was the exclusive broker. Special Term, holding that there could be no conspiracy with the seller to breach its own contract, and no cause of action for wrongful interference with plaintiff’s contract absent allegations of tortious misconduct, properly dismissed the complaint. Plaintiff was granted leave to serve an amended complaint if he could allege that the tortious misconduct inducing the seller to contract directly with the buyers was not as a result of alleged misrepresentation as to the identity of the broker, but the result of a promise that the seller was to receive some of the benefit of the commission “ kick back ”. Apparently the plaintiff is unable to amend the complaint upon the basis suggested by Special Term. However, he may be able to amend it in other respects and allege specific acts of tortious misconduct which would make the complaint sufficient. Settle order on notice. Concur — Botein, P. J., Breitel, M. M. Frank, McNally and Stevens, JJ.