Bunnell v. Chapman

Headnote

Bunnell v. Chapman, 175 App. Div. 855 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1916, which reversed an order of Special Term overruling a demurrer to the complaint and sustained such demurrer in an action to recover broker’s commissions alleged to have been earned under an employment to obtain for defendant a purchaser for cartridges. It was alleged that plaintiff procured a purchaser, that he was accepted by the defendant and a formal contract in writing was entered into between the said purchaser and defendant. It was further alleged that payment of commissions was to be made as the goods sold were delivered and paid for, but that defendant repudiated and abandoned the contract by refusing to perform an obligation incumbent upon him thereunder to furnish security for performance. The defense was that this obligation on the part of defendant, a breach of which was alleged, was conditioned upon the purchaser first causing to be transferred to a New York bank the sum of $100,000 on or before noon August 3,1915, to guarantee the transfer of the balance and assure final contract,” and within fifteen days after the date of the contract “ to cause to be established in a New York bank a banker’s confirmed credit,” and that performance of those conditions by the purchaser was not alleged. The following question • was certified: “ Does the complaint state facts sufficient to constitute a cause of action % ”