Opinion
March 13, 1930.
Appeal from the Municipal Court, Borough of Manhattan, Fourth District.
David G. Godwin, for the appellant.
Reuben Caidin, for the respondent.
The court below erred in directing summary judgment for plaintiff. The authorities permit a broker to recover his commissions where he has been hired as the exclusive agent for a fixed period of time and he produces a ready buyer on the terms of his hiring within the period fixed, although the owner has meanwhile sold through another agent. ( Moses v. Bierling, 31 N.Y. 462.) Whether such rule would apply where the sale was made through the owner's own efforts would appear to depend on whether the contract of hiring gave the broker an exclusive right to sell as distinguished from the exclusive agency. (See Slattery v. Cothran, 210 A.D. 581.) In any event the broker cannot recover commissions as such unless his work has been completed. ( Slattery v. Cothran, supra.) In the case cited by respondent ( Leibow v. Tilson, 124 Misc. 743) an examination of the record discloses that the contract was one giving the broker an exclusive right of sale and in addition the proof disclosed that the broker was the procuring cause of a sale actually made. In the instant case plaintiff has been allowed commissions without proof that he had procured a customer merely because the owner had sold himself. Further, the commissions were improperly based on the rent defendant paid under his lease.
Judgment and order reversed, with ten dollars costs, and motion denied.
All concur; present, LYDON, CALLAHAN and PETERS, JJ.