Opinion
November 16, 1959
Present — Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ. [ 19 Misc.2d 234.]
Appeal from a decree of the Surrogate's Court, Nassau County, (1) granting an application pursuant to section 215 of the Surrogate's Court Act for advice and direction as to the sale of certain real property, and (2) directing the sale of the property. Decree modified on the law and the facts by striking from the third decretal paragraph everything following the words "farm to" and by substituting therefor the words and figures "John A. Wicks upon all of the terms set forth in a written offer dated April 16, 1959 and marked Petitioner's Exhibit IV in this proceeding". As thus modified, decree unanimously affirmed, with costs to all parties filing separate briefs, payable out of the estate. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. Appellant does not have the enforcible contract to purchase claimed by him. Accordingly the provisions for payment of commissions, stated in petitioner's Exhibit I, are not applicable. The property should be sold to appellant inasmuch as his offering price yields the highest net amount to the estate. Moreover, respondent Ross effectively waived any right to a commission under petitioner's exhibit I by withdrawing his answer, by urging acceptance of the last offer of Miltod Corporation, to which the decree directed that the property be sold, by waiving a commission for the purpose of aiding his client, and by thereupon resting his case.