Senior v. Fitzgerald — 119 N.Y.S. 745

Majority

p. 745

SENIOR v. FITZGERALD.

(Supreme Court, Appellate Term.

November 30, 1909.)

Headnote

Brokers (§ 49*)—Employment Contract—Performance.

Defendant authorized plaintiff to sell certain property for her at $40,-000. The best offer plaintiff obtained was $38,000, and the property was subsequently sold by a third person for $39,000. Held, that plaintiff did not produce a party willing, ready, and able to purchase on defendant’s-terms, and could not therefore claim commissions.

[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig.. § 49.*]

♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.

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

Action by Harry C. Senior against Mary Fitzgerald. Judgment for plaintiff, and defendant appeals.

Reversed.

Argued before GILDERS REEVE, P. J., and SEABURY and LEHMAN, JJ.

Frank T. Fitzgerald, for appellant.

John C. West, for respondent.

This action was brought to recover $390 for commissions alleged to have been earned in causing the sale of certain real estate. The undisputed evidence shows that $40,000 was the lowest price the plaintiff was authorized to sell the property for, and that $38,000 was the -best offer he obtained. The property was subsequently sold by a third party for the sum of $39,000. It follows that the plaintiff did not produce a party who was willing, ready, and able to-purchase the property at the owner's terms.

p. 746

The evidence adduced by the plaintiff was "insufficient to take this case out of the general rule of law applicable to cases of this kind.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event.