Opinion
October 29, 1927.
H., I. L. Cohen, for the plaintiff.
Newgass, Nayfack Waldheim, for the defendant.
The complaint, briefly summarized, alleges that defendant employed plaintiff as broker to procure for him the purchase of certain property; that the plaintiff, in reliance on the employment, did procure the owner of the property to accept the defendant's terms and conditions; that the latter at all times was well aware that the plaintiff was acting as broker, and would receive the usual commissions on the consummation of the sale, and that he arbitrarily and wrongfully refused to consummate the sale on the terms and conditions proposed by him, although the owner of the property was ready, able and willing to perform on his part — all to the plaintiff's damage in a specified sum.
It seems to me a good cause of action is stated. ( Pease Elliman v. Gladwin Realty Co., 216 A.D. 421.) Defendant attempts to distinguish that case, because here there is no allegation of an agreement on the defendant's part to purchase the premises, if the plaintiff was able to procure them upon the terms and conditions proposed. It appears to me, however, that the allegation that "the defendant requested and employed the plaintiff as broker to procure for him the purchase of the premises * * * upon certain terms and conditions" is instinct with such an agreement and obligation on the defendant's part.
The motion to dismiss the complaint is, therefore, denied, with ten dollars costs.