Donnelly v. Chetejian — 115 N.Y.S. 125

Majority

p. 125

DONNELLY v. CHETEJIAN.

(Supreme Court, Appellate Term.

March 5, 1909.)

Headnote

Bbokeks (§ 40*)—Right to Commissions.

Defendant, having, before acceptance, withdrawn his offer for purchase of land carried by plaintiff on his books for sale for the owner, no promise or word with reference to payment of commissions by defendant being shown, is not liable for commissions.

[Ed. Note.—For other cases, see Brokers, Dec. Dig. § 40.^[1] ]

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by John Donnelly against Mehran L. Chetejian. From a judgment for plaintiff, defendant appeals. Reversed, and a new trial ordered.

Argued before GILDERSLEEVE, P. J., and MacLEAN and DAYTON, JJ.

Frank E. Stripe, for appellant.

Gorman & Lamey, for respondent.

Suing, upon oral pleadings, for broker’s commissions, and facing a general denial, with the burden of proof- upon him to prove his claim by a preponderance of evidence, the plaintiff may hardly be said to -have met the "requirements thereóf.. The most that can be said is that he and his manager testified to conversations with the defendant regarding the purchase by him of a- certain piece of property carried on the books of the plaintiff for sale for and on behalf of the owner, that the defendant made him an offer upon terms certain for the purchase of the property, and that later, on informing the defendant that the matter was “practically settled,” the defendant withdrew his offer; no promise or word with reference to the pay-, ment of commissions by the defendant being shown. Withdrawing his offer before acceptance thereof, at the instance and by the efforts of the plaintiff, the defendant certainly may not be held by the plaintiff for commissions, whatever other, if any, liability arose.

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