Opinion
September 21, 1949.
Appeal from Supreme Court, Tompkins County.
Present — Foster, P.J., Brewster, Deyo, Santry and Bergan, JJ.
The action is by the plaintiff, a broker, to recover commissions on the sale of real estate owned by the defendant. The defendant executed a contract of sale with purchasers in which she agreed to pay plaintiff's commissions. Her answering affidavit shows that she employed the plaintiff and admits the amount of his commission. The defendant sets up an affirmative defense, fraud by the plaintiff in representing that the purchasers were financially able to carry out their contract and that she executed the contract in reliance thereon, and also alleges that commissions were not to be paid unless the sale was completed by the purchasers. The documentary proof and the defendant's own affidavit indicates that she voluntarily released the purchasers from their contract of purchase and then sold the property to third parties at an increased price. She made no attempt to enforce the contract, made no investigation of the purchasers' financial worth, and does not specifically allege the purchasers were not able to perform. The answer is sham and presents no triable issue of fact. Order and judgment unanimously affirmed, with costs.