Hattenbach v. Gundersheimer — 37 N.Y. St. Rep. 509

Majority

p. 509

Isaac Hattenbach, Resp’t, v. Charles Gundersheimer, App’lt.

(New York Common Pleas, General Term,

Filed April 6, 1891.)

Headnote

Brokers—Commissions.

Where a broker has presented a purchaser satisfactory to defendant and a contract of sale is entered into, his commissions are earned and he cannot be deprived of them by the fact that the contract afterwards failed because of the attempted imposition of other terms.

Appeal from seventh district court.

Herring & Meyer, for app’lt; Langbein & Langbein, for resp’t.

The action is by the broker against the seller to recover a commission “ of per cent of the selling price, if he sells my bakery or sends a party that does buy it” Such in terms was the written stipulation of the defendant. The plaintiff produced a purchaser who did buy, and to whom the defendant did sell the bakery. The defendant signed the contract of sale and accepted $100 in part payment; but afterward refused to carry out the sale, unless the buyer would secure the lease on the premises. This was not a term of the contract; and by insisting on it the defendant was the cause of the miscarriage of the negotiations. But, the plaintiff had already fulfilled his engagement by presenting a purchaser who did buy and to whom defendant did sell, by an agreement obligatory on both parties. It was then too late for defendant to escape liability to plaintiff for his commissions. Geoghegan v. Kelly, 34 N. Y. State Rep., 314.

The judgment is affirmed.

Bischoff, J., concurs.