Opinion
July 20, 1945.
Louis D. Frolich, Herbert P. Jacoby and Lawrence C. Gibbs for defendant.
Emanuel A. Stern for plaintiffs.
The complaint here challenged as insufficient essentially alleges that plaintiff brokers were expressly employed by defendant to procure for it, as tenant, a certain lease on certain premises, plaintiffs to be compensated by commissions to be paid by the lessor. Defendant eventually refused to enter into the lease as finally negotiated and is here sued for the commissions plaintiffs would have earned from the lessor.
I hold that the complaint states a cause of action. A definite contract between the parties is alleged, for breach of which plaintiffs are entitled to naturally consequent damages, if such breach be established ( Grossman v. Herman, 266 N.Y. 249; Pease Elliman, Inc., v. Gladwin Realty Co., Inc., 216 A.D. 421). A different case would be here if the broker had been expressly employed only by the owner and sought to hold the prospective lessee or vendee by an alleged implied contract arising from acceptance of the transaction offered by the broker to the said lessee or vendee ( Greene v. Brown, 256 A.D. 110 3, affd. 281 N.Y. 742). Liability arises only upon a definite contract with or employment of the broker by the prospect, and a breach thereof ( Sieven v. Glazer, 181 Misc. 318, affd. 267 A.D. 969, leave to appeal denied 292 N.Y. 726; Grossman v. Herman, supra, p. 253). Defendant urges that the broker has no recourse unless the prospect not only "agreed" but agreed to pay "commissions". However, on careful reading of the authorities and on principle, it would seem sufficient that the prospect expressly "contracted" with the broker, whoever is to pay the commissions ( Grossman v. Herman, supra; Parker v. Simon, 231 N.Y. 503; Hokar Products Corp. v. Griscom Co., 40 N.Y.S.2d 54). The authority of Fox Co. v. Wohl ( 255 N.Y. 268) would seem in any event limited to cases of exchange of property.
The motion is denied with leave to answer within twenty days after service of a copy of the order herein with notice of entry.