Geoghegan v. Kelly — 34 N.Y. St. Rep. 314

Majority

p. 314

George Geoghegan, Resp’t, v. James Kelly, App’lt.

(New York Common Pleas,

General Term,

Filed December 1, 1890.)

Headnote

Brokers—Commissions.

Plaintiff was employed by defendant, as broker, to negotiate a sale of his stock and fixtures. Plaintiff brought a purchaser able and ready to pay the price demanded, the terms of sale were agreed upon and reduced to writing and signed by defendant, and part of the purchase-price paid. Held, that this was sufficient to entitle plaintiff to his compensation, and that his right thereto was not affected' by the fact that the consent of defendant’s landlord was necessary to carry out the contract, or that the buyer afterward refused to carry it out.

Appeal from judgment of eighth district court in favor of plaintiff.

James F. Higgins, for resp’t; Michael J. Mulgueen, for app’lt.

Appeal from a judgment for plaintiff in a district court.

Action to recover an agreed compensation of $125, for negotiating, as broker, a sale of defendant’s stock and fixtures in the store No. 368 Tenth avenue, New York city.

The employment of plaintiff by defendant for the purpose stated, and the agreement to pay the $125, were not controverted. And by conclusive evidence it was established that plaintiff brought to defendant a purchaser who was able and ready to pay the price demanded by the seller; that the buyer and seller agreed upon terms; that a contract of sale was reduced to writing and signed by defendant, the seller; and that $100, part payment of the purchase price, was received and retained by the seller.

By all authorities this was sufficient to entitle plaintiff to compensation. Sibbald v. The Company, 83 N. Y., 378 , 382; Smith v. McGovern, 65 id., 575; Moses v. Bierling, 31 id., 462; Wall v. Co., 21 N. Y. State Rep., 105.

The fact that the carrying out of the contract was conditioned on the consent of the landlord and mortgagee, did not affect the completeness or validity of the agreement, but related only to the fulfillment of the contract; and that consent was duly obtained, so that no obstacle existed to the execution of the contract

True it is, that subsequently to the part payment, the buyer refused to carry out the agreement, but that was no fault of plaintiff. The inadvertent error in the notes was promptly corrected. Defendant has his redress against the buyer on the contract; and if more were needed to perfect plaintiff’s right of action, that supplies it. Barnes v. Roberts, 5 Bosw., 73 ; Glentworth v. Luther, 21 Barb., 147 ; Tombs v. Alexander, 101 Mass., 255 ; Hunter v. Wetsell, 84 N. Y., 549 ; Jackson v. Tupper, 101 id., 515; Mason v. Decker, 72 id., 595.

Judgment affirmed, with costs.

Daly, Oh. J., and Bischoff, - J., concur.