Opinion
July, 1933.
Judgment reversed on the law and a new trial granted, costs to abide the event. We are of the opinion that, under the facts of this case, the written agreement, dated March 31, 1931, is nudum pactum and void. The evidence shows that at the time this agreement was made the contract of sale had been drawn and agreed upon in every particular by the owner and purchaser and an agreement made between the owner and the brokers as to their commissions. At that rate, according to the evidence in the record, the brokers were entitled to their commissions. A different situation appeared in Colvin v. Post Mortgage Land Co. ( 225 N.Y. 510), upon which authority apparently the trial court dismissed the complaint in the present case. There, the agreement between the owner and the broker as to commissions was made before the broker had produced a customer willing to purchase upon the owner's terms. The broker had not earned his commissions when the agreement in the Colvin case was made. After the special agreement with the broker had been made, negotiations were continued and a sale effected on entirely different terms from those proposed by the owner at first. Young, Kapper, Hagarty and Tompkins, JJ., concur; Scudder, J., not voting.