Finck v. Carlson — 137 N.Y.S. 902

Majority

p. 902

FINCK v. CARLSON.

(Supreme Court, Appellate Term, First Department.

November 8, 1912.)

Headnote

Brokers (§ 49*)—Compensation—Sufficiency of Services.

A broker, authorized to procure an acceptance of an application for a loan at 4% per cent, for five years, was not entitled to compensation on procuring an acceptance on condition of the production of an appraisal at a certain value, and approval of title 'by a title company and by the lender, and that the attorneys of the lender receive three-fourths of 1 per cent, fees and out disbursements, in the absence of defendant’s consent thereto, since such conditions were materially different from defendant’s terms; the fact that other reasons may have actuated the defendant in rejecting the loan being immaterial.

[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 City Court of New York, Trial Term.

Action by John Finck against Francis A. Carlson. From a j'udgrnent of the City Court in favor of plaintiff, entered upon the verdict of the jury, defendant appeals.

Reversed, and new trial ordered.

Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.

Elfers & Abberley, of New York City, for appellant.

Charles L. Hoffman, of New York City (Henry A. Friedman, of New York City, of counsel), for respondent..

This is an action by a broker to recover commissions alleged to have been earned in procuring an acceptance of the defendant’s application for a loan of $160,000 at 4%. per cent. Adopting the most favorable inferences that may be drawn from the testimony on behalf of the plaintiff, it appears that the defendant authorized the plaintiff to procure an acceptance of the defendant’s application for a loan of $160,000 at 4J4. per cent, for five years. The only authorized acceptance is contained in a letter which provides as follows:

“On behalf of our client, Trustees of Columbia College in the City of New York, we accept your application for a loan for five years at 4% per cent, on premises southeast corner of 151st street and Broadway. Bond of Francis W. Carlson on the following terms: That Brown o-r Ely’s appraisal be produced, showing a value of said premises of $240,000 or over. That the title to said premises be approved by a title company, and also to be satisfactory to us. That we receive for our fees three-fourths of 1 per cent, and out disbursements. We also agree to take the loan by assignment, if the present mortgage is tax paid. Title to close on or before June 1, 1911. Kindly acknowledge receipt of this acceptance.”

It is evident that this acceptance of defendant’s application for the loan was conditional, and that th.e conditions specified in it were material. The record fails to disclose that the defendant had agreed to the conditions contained in the acceptance. In order to recover, the plaintiff was required to prove that he procured a person ready, willing, and able to make the loan upon the defend

p. 903

ant’s terms. This he did not do. The fact that other reasons may have actuated the defendant in rejecting the loan is immaterial, provided the plaintiff did not obtain the defendant’s consent to the conditions specified in the acceptance.

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