Opinion
February 20, 1950.
Present — Carswell, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ. [See post, p. 1022.]
In an action to recover brokerage, order denying defendants' motion for summary judgment and granting plaintiff's motion for summary judgment, modified on the law by striking from the second ordering paragraph the words "in all respects granted" and by substituting in place thereof the word "denied", and by striking out the last ordering paragraph. As so modified, the order is unanimously affirmed, without costs. The judgment for plaintiff, entered in accordance with the granting of his motion, is vacated, without costs. There is no clear and undisputed factual showing to warrant summary judgment on the issues presented with respect to the status of plaintiff, as agent, and the nature and extent of waiver of that status ( Kaake v. Griswold, 104 App. Div. 137) and waiver of the ordinary obligations of a broker with respect to using the best efforts to obtain the highest possible price ( Moffat v. Gerry Estates, Inc., 259 App. Div. 403, 405; Wechsler v. Bowman, 285 N.Y. 284). A triable issue is also presented with respect to the alleged falsification by plaintiff of the name of the prospective purchaser. ( Moffat v. Gerry Estates, Inc., supra, pp. 406-409; Smith v. Kreps, 104 N.J.L. 408; Pratt v. Patterson's Executors, 112 Pa. 475.)