Majority
p. 721Martin L. O’Hara, Respondent, v. Bronx Consumers Ice Company, Appellant.
Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. In this action to recover a real estate broker’s commission, it appears that the proposed purchasers desired to use the property to erect a public garage. Before the contract was delivered, the purchasers ascertained that there was a restrictive covenant of record against “ any noxious, offensive or dangerous trade or business.” Such a covenant does not prevent the erection and maintenance of a public garage. (Goldstein v. Rosenberg, 191 App. Div. 492 ; affd., 232 N. Y. 535 .) The purchasers, therefore, were not justified in refusing to execute and deliver the contract, and it follows that respondent failed to produce
p. 722
a buyer ready and willing to purchase, and he is, therefore, not entitled to a commission. Lazansky, P. J., Rich, Young and Seudder, JJ., concur; Hagarty, J., dissents, with the following memorandum: I dissent and vote to affirm. At the outset of the negotiations, the plaintiff was informed by the defendant that there were no “ so-called private restrictions ” upon the property. Upon this basis the plaintiff produced a customer ready, willing and able to purchase. It developed, however, that the property was subject to a restrictive covenant against nuisances, as the result of which the proposed purchaser refused to enter into a contract. I think the plaintiff earned his commission.
Cases cited
- L. Black Co. v. London Guarantee & Accident Co. 232 N. Y. 535 p. 721