Duross Co. v. Jannelli

Appellate Terms of the Supreme Court of New York

Duross Co. v. Jannelli

136 Misc. 193, 240 N.Y.S. 617, 1930 N.Y. Misc. LEXIS 1105

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 13, 1930

StatusPublished

This text of 136 Misc. 193 (Duross Co. v. Jannelli) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duross Co. v. Jannelli, 136 Misc. 193, 240 N.Y.S. 617, 1930 N.Y. Misc. LEXIS 1105 (N.Y. Ct. App. 1930).

Pincite

Opinion

Per Curiam.

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 App. Div. 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 [194]*194of 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.

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Per Curiam.

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 App. Div. 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 [194]*194of 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.

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Bluebook (online)

136 Misc. 193, 240 N.Y.S. 617, 1930 N.Y. Misc. LEXIS 1105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duross-co-v-jannelli-nyappterm-1930.

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