Mainhart v. Poerschke — 65 N.Y.S. 494

Majority

p. 494

MAINHART v. POERSCHKE.

(Supreme Court, Appellate Term.

June 25, 1900.)

Headnote

Broker—Agreement of Parties—Compensation.

Plaintiff, a real-estate broker, secured a customer to take defendant’s premises in exchange for his own, and pay defendant for the difference in the value of the equities. No time was stipulated as to when the exchange should take effect, and a tenant in defendant’s premises refused to vacate without the statutory 90 days’ notice, and defendant refused to perform unless the purchaser would take subject to the lease. This the latter refused to do, and the transaction was never consummated. Held that, since plaintiff knew of the existence of the lease, he had never perfected the contract for exchange, so as to be entitled to commissions for effecting the trade.

Appeal from municipal court of city of New York.

Action by Frank E. Mainhart against Edward R. Poerschke to recover commissions for effecting an exchange of real estate. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ.

p. 495

Fromme Bros., for appellant.

Frank E. Hippie, for respondent.

The judgment under review is° sought to be upheld upon the ground that the plaintiff produced one Stern, who was ready and willing to exchange his property, situate in Mt. Vernon, in this state, for the defendant’s premises, known as Ho. 234 West 136th street, in the borough of Manhattan, upon the terms named by the latter. While it is true that through the plaintiff’s efforts the parties did agree upon a sum which was to be paid to the defendant for the difference in the equities of the lands to be exchanged, yet the record discloses that the minds of the parties never met with respect to the time when possession of the premises owned by the defendant should be given. This, even according to the testimony offered in behalf of the plaintiff, was still an open question when the parties agreed to meet at the office of the attorney for the defendant upon the following day. When they met it was discovered that the tenant who then occupied the premises owned by the defendant refused to waive service of 90 days’ notice to vacate the same in case of a transfer of title, to which notice she was entitled by the terms of her lease. The defendant then refused to enter into a contract unless Stern would stipulate to take the premises subject to such outstanding lease. The latter declined to do so, and the transaction fell through. The plaintiff knew of the existence of this provision of the lease while he was engaged in his negotiations. Since this was an implied contract for the services of a broker, his right to commissions was dependent upon his bringing the minds of the parties to an agreement (Byrne v. Korn, 25 Misc. Rep. 509 , 54 N. Y, Supp. 1050 ), and, having failed to do so, it .is obvious that the rendition of the judgment in his favor was erroneous.

It follows from these views that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.