Janpol v. Gold

122 A.D. 401, 106 N.Y.S. 891, 1907 N.Y. App. Div. LEXIS 2453

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1907
• Status: Published

Opinion

Rich, J.:

This action was brought to recover $150 balance claimed to be due under a clause in a brokerage agreement providing that “ One hundred and fifty ($150) dollars additional, when said Schlosberg shall reach the first tier of beams in process of construction of houses upon said eight lots.” Plaintiff sold the lots to Schlosberg, who agreed to erect houses thereon, and was paid $50 for his commission, and defendant promised to pay the further su m of $150 as above provided. The purchaser was unable to pay for the lots'and proceed with the construction of the buildings, and “the first tier of beams” was never reached. It was a condition, precedent to plaintiff’s right to recover that the first tier of beams should be reached in process of construction (Turner v. Lane, 47 Misc. Rep. 387 ; 93 N. Y. Supp. 1083 ; Tooker v. Arnoux, 76 N. Y. 397) ; and unless it be made to appear that the defendant was in some way responsible for the failure of Schlosberg to proceed, plaintiff cannot recover. We are unable to find any satisfactory evidence from which this inference can be drawn.

The judgment must be reversed and a new trial ordered, costs to abide the event.

Woodwakd, Gaynor and Miller, JJ., concurred ; Hirsohberg, P. J., not voting.

Judgment of the Municipal Court reversed and new trial ordered, ' costs to abide the event.