p. 276Max Weiss, Respondent, v. Max Rubinson and Jacob Rubinson, Appellants.Headnote
Principal and agent — real estate' broker’s action for commissions — failure to produce purchaser willing to comply with owner’s terms of sale. “ sWhen, in an action by a real estate broker for commissions,, it is shown that the purchasers whom he procured agreed verbally that the owners were not tp be required to covenant in the deed that certain tenement “ violations ” be removed from the premises, but upon the day set for the delivery of the deed insisted that such condition be embodied in the deed, and on the refusal of the owners to do so, declined to complete the purchase, the broker has failed to produce a purchaser willing to execute a ‘contract upon the terms prescribed -and is not entitled to recover his commissions.
Appeal, by the defendants, - Max- Rubinson and another, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day pf Kovember, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th-day of December, 1904,' denying the defendants’ motion for a new trial made upon the minutes.
W. H. Burby, for the appellants.
M. Hallheimer, for the respondent.
The. defendants,, who owned two houses,, hired the plaintiff as a broker to procure purchasers. The plaintiff brought Greenberg and Schiller as purchasers to the defendants. One of the defendants. testifies that plaintiff .then told him that they had seen the houses and were ready to purchase them; jffiat thereupon defendant asked him if they had seen mechanics and plumbers working on it, and a scaffold, and that Greenberg answered- that he had examined it and everything was.all right. Greenberg then asked if .he had any violations, and the witness answered yes, and showed a contract with a mechanic that was ‘ satisfactory to the department. Green-berg suggested that it be put in the contract, but the owner refused,
p. 277saying that they would put in the contract, with the mechanics for removing the violations. • Thereupon the purchasers said that they would “ do everything, * * * we will take 'your word for it.” The plaintiff then asked if they would take a deposit; the defendants refused, but finally accepted a deposit from each purchaser. Thereupon a receipt was given by the defendants, which provided that a contract should be made two days later — June sixteenth—at a certain place, title to be delivered on August first thereafter. When the parties met at the appointed time and place, an attorney for the purchaser insisted- that the removal of the violations should be embodied in the contract. The defendants refused, saying that' they had not agreed. At the same time they again exhibited the contract with the mechanics, and stated that they would see to it that the violations were removed before the deed was delivered. Thereupon the purchasers said that they did not want the premises, but demanded' their deposits, which were finally paid to them. ¡Nothing further was done. Although the proposed purchasers were called to the stand after the defendants had given their testimony, neither of them contradicted the defendants. The broker now sues for his commissions. If the testimony of the defendants is to be credited, then the purchasers insisted upon more onerous terms in the contract than those which were verbally agreed upon between them, and the defendants were not bound to execute such contract. Under such circumstances the plaintiff did not produce a purchaser willing to execute a contract upon the terms prescribed.
(Platt v. Kohler, 65 Hun, 559 ;
Pullich v. Casey, 43 App. Div. 122 .)
The judgment is reversed and a new trial ordered, costs to abide the event.
Woodward, Jerks, Hooker and Rich, JJ., concurred.
Judgment and order of the County Court of ¡Kings county reversed and new trial ordered, costs to abide the event.