Flohar Realty Corp. v. Georgian Realty Co. — 222 A.D. 171

Majority

p. 171

Flohar Realty Corporation, Appellant, v. Georgian Realty Company, Inc., Respondent.

First Department,

December 23, 1927.

Headnote

Brokers — real estate brokers — action for commissions — complaint not insufficient where based on two theories as to amount of recovery.

The complaint in this action to recover commissions by a real estate broker which presents two theories as to the amount of the recovery depending upon to whom - the property was sold, is not insufficient for that reason.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 1st day of April, 1927.

Robert C. Moore of counsel [Charles P. Robinson with him on the brief], for the appellant.

Thomas G. Prioleau of counsel [Leonard & Walker, attorneys], for the respondent.

We are of opinion that the complaint states but one cause of action to recover a sum of money payable upon the sale of the premises in question. Two theories, however, are set forth, one whereby a sale by the defendant to the lessee directly or to its agent would obligate defendant to pay $30,000 to the plaintiff, and the other whereby a sale to any other party would obligate defendant to pay $7,500. The amount of damages according to plaintiff’s theories will be dependent upon the verdict on the questions of fact relating to the party to whom the sale was actually, if at all made. For these reasons the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Dowling, P. J., Merrell, Martin, O’Malley and Prosicauer, JJ.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.