Finck v. Carlson

Appellate Terms of the Supreme Court of New York

Finck v. Carlson

137 N.Y.S. 902

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 8, 1912

StatusPublished

This text of 137 N.Y.S. 902 (Finck v. Carlson) 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

Finck v. Carlson, 137 N.Y.S. 902 (N.Y. Ct. App. 1912).

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Opinion

SEABURY, J.

This is an action by a broker to recover commissions alleged to have been earned in procuring an acceptance of the defendant’s application for a loan of $160,000 at 4%. per cent. Adopting the most favorable inferences that may be drawn from the testimony on behalf of the plaintiff, it appears that the defendant authorized the plaintiff to procure an acceptance of the defendant’s application for a loan of $160,000 at 4J4. per cent, for five years. The only authorized acceptance is contained in a letter which provides as follows:

“On behalf of our client, Trustees of Columbia College in the City of New York, we accept your application for a loan for five years at 4% per cent, on premises southeast corner of 151st street and Broadway. Bond of Francis W. Carlson on the following terms: That Brown o-r Ely’s appraisal be produced, showing a value of said premises of $240,000 or over. That the title to said premises be approved by a title company, and also to be satisfactory to us. That we receive for our fees three-fourths of 1 per cent, and out disbursements. We also agree to take the loan by assignment, if the present mortgage is tax paid. Title to close on or before June 1, 1911. Kindly acknowledge receipt of this acceptance.”

It is evident that this acceptance of defendant’s application for the loan was conditional, and that th.e conditions specified in it were material. The record fails to disclose that the defendant had agreed to the conditions contained in the acceptance. In order to recover, the plaintiff was required to prove that he procured a person ready, willing, and able to make the loan upon the defend[903]*903ant’s terms. This he did not do. The fact that other reasons may have actuated the defendant in rejecting the loan is immaterial, provided the plaintiff did not obtain the defendant’s consent to the conditions specified in the acceptance.

The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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SEABURY, J.

This is an action by a broker to recover commissions alleged to have been earned in procuring an acceptance of the defendant’s application for a loan of $160,000 at 4%. per cent. Adopting the most favorable inferences that may be drawn from the testimony on behalf of the plaintiff, it appears that the defendant authorized the plaintiff to procure an acceptance of the defendant’s application for a loan of $160,000 at 4J4. per cent, for five years. The only authorized acceptance is contained in a letter which provides as follows:

“On behalf of our client, Trustees of Columbia College in the City of New York, we accept your application for a loan for five years at 4% per cent, on premises southeast corner of 151st street and Broadway. Bond of Francis W. Carlson on the following terms: That Brown o-r Ely’s appraisal be produced, showing a value of said premises of $240,000 or over. That the title to said premises be approved by a title company, and also to be satisfactory to us. That we receive for our fees three-fourths of 1 per cent, and out disbursements. We also agree to take the loan by assignment, if the present mortgage is tax paid. Title to close on or before June 1, 1911. Kindly acknowledge receipt of this acceptance.”

It is evident that this acceptance of defendant’s application for the loan was conditional, and that th.e conditions specified in it were material. The record fails to disclose that the defendant had agreed to the conditions contained in the acceptance. In order to recover, the plaintiff was required to prove that he procured a person ready, willing, and able to make the loan upon the defend[903]*903ant’s terms. This he did not do. The fact that other reasons may have actuated the defendant in rejecting the loan is immaterial, provided the plaintiff did not obtain the defendant’s consent to the conditions specified in the acceptance.

The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

137 N.Y.S. 902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finck-v-carlson-nyappterm-1912.