Opinion
January 17, 1972
Appeal (by permission of this court) by defendants Ryan and Larchmont Associates, Inc., from an order of the Appellate Term, Ninth and Tenth Judicial Districts, dated March 16, 1971, which affirmed a judgment of the County Court, Westchester County, entered November 5, 1969, in favor of plaintiff upon a jury verdict in the amount of $2,640. Order of the Appellate Term and judgment of the County Court insofar as it is against defendants Edward F.X. Ryan and Larchmont Associates, Inc., reversed, on the law, with costs, and complaint as against said defendants dismissed. Plaintiff's cause of action was based on an alleged conspiracy between defendants to deprive it of certain real estate commissions. In our opinion, a directed verdict or judgment notwithstanding the verdict should have been granted in favor of defendants. The evidence adduced at the trial, as a matter of law, failed to establish the existence of a conspiracy or that plaintiff would have with some certainty completed the real estate transaction and earned its commission but for the tortious acts of defendants ( Basch v. Salvation Army, 244 App. Div. 230, affd. 271 N.Y. 589; Williams Co. v. Collins Tuttle Co., 6 A.D.2d 302; Byrne, Bowman Forshay v. 488 Madison Ave., 11 Misc.2d 587, affd. 286 App. Div. 826). In addition, it was error for the trial court to prevent defense counsel from reading a paragraph of plaintiff's verified bill of particulars to the jury upon summation. This paragraph alleged that plaintiff had produced a purchaser "ready, able and willing to purchase the subject premises from the defendant * * * Zah, upon her terms, which were a cash sale for the sum of $44,000.00." This allegation was negated by plaintiff's main witness, Canella, on direct and cross-examination. Consequently, the court erred in preventing defense counsel from reading this item of plaintiff's bill of particulars to the jury and contrasting it to the proof adduced (8 Carmody-Wait 2d, N Y Prac., § 56:139; Holmes v. Jones, 121 N.Y. 461). We have reviewed plaintiff's other contentions and have found them to be without merit. Martuscello, Latham and Christ, JJ., concur; Hopkins, Acting P.J., and Munder, J., dissent and vote to affirm the order of the Appellate Term.