Goldsmith v. Cook — 34 N.Y. St. Rep. 688

Majority

p. 688

Isaac Goldsmith, Resp’t, v. Valentine E. N. Cook, App’lt.

(City Court of New York,

General Term,

Filed December 24, 1890.)

Headnote

Brokers—Commissions—Evidence.

In an action by a broker to recover for services in procuring a purchaser at the price named, the fact that defendant employed and paid another broker who effected a sale to a different person is not a defense, and evidence respecting it is incompetent.

Appeal from judgment entered on verdict in favor of plaintiff.

Smith Tuttle, for app’lt; J. G. Mitchell, for resp’t

The plaintiff swears that the defendant employed him as a broker to sell the realty in question for $13,000; that he procured Marks Rinaldo as a purchaser at that price, and that the defendant refused to sell unless Rinaldo paid $250 more for the property, which Rinaldo refused to do. The defendant denied the employment, and claims that on the same day he sold the property to Annie E. Crooker for $13,150. See contract at fol. 66. The evidence was conflicting and the case had to go to the jury. The fact that the defendant employed and paid another broker, who effected a sale to another person, was not a defense, and the evidence respecting it was incompetent and therefore properly excluded. Jarvis v. Schaefer, 105 N. Y., 289 ; 7 N. Y. State Rep., 502. It is settled that when one of the contracting parties either prevents or waives .the literal performance of a condition precedent, which the other is ready and offers to fulfill, he cannot avail himself of such non-performance to relieve him from his own obligation. Moses v. Bierling, 31 N. Y., 463 ; Risley v. Smith, 64 id., 576 ; Home Bank v. Drumgoole, 109 id., 63; 14 N. Y. State Rep., 40. The evidence sufficiently sustains the verdict, and we find no error requiring a new trial. Judgment affirmed, with costs.

Mo Ad AM, Ch. J., and Yan Wyck, J., concur.