Opinion
March, 1907.
Bushby Berkeley (James C. Bushby, of counsel), for appellant.
Steuer Hoffman (Max D. Steuer and Henry A. Friedman, of counsel), for respondent.
This case came before this court on a former appeal, and a judgment in favor of the plaintiff was reversed and a new trial ordered. Hough v. Baldwin, 50 Misc. 546. The new trial was had and the plaintiff again recovered and this is an appeal from that judgment and from an order denying a motion for a new trial. The testimony on the new trial did not differ materially from that given on the first trial. The action is for broker's commissions. The plaintiff claims to have earned his commissions for having produced a party ready and willing to exchange property with the defendant. It appears now that the party produced by the plaintiff would not sign the contract agreed upon the day before, unless there was inserted therein the provision, "it is understood between the parties hereto that if the party of the second part rejects title on the ground of bay window or stoop ledge encroachments then the deposit paid herein shall be returned in full for all claims." The contract was signed with this provision inserted. By this provision the exchange was made to depend upon the mere option of the plaintiff's customer to take or not in case of these encroachments. The contract was thus not a binding, enforceable contract, and the party produced by the plaintiff was not ready and willing to take upon the terms proposed to the plaintiff. These encroachments would not have been a good ground for rejecting the title if there was not a special agreement to that effect.
Judgment reversed and judgment directed for the defendant dismissing the complaint, with costs in the court below and the costs of this appeal.
GILDERSLEEVE and HENDRICK, JJ., concur.
Judgment reversed and judgment directed for defendant dismissing complaint, with costs in court below and of this appeal.