Klein v. Fisher

Appellate Division of the Supreme Court of New York

Klein v. Fisher

281 A.D. 1074, 122 N.Y.S.2d 97, 1953 N.Y. App. Div. LEXIS 4374

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 27, 1953

StatusPublished

This text of 281 A.D. 1074 (Klein v. Fisher) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Klein v. Fisher, 281 A.D. 1074, 122 N.Y.S.2d 97, 1953 N.Y. App. Div. LEXIS 4374 (N.Y. Ct. App. 1953).

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Opinion

Judgment affirmed, with costs. Memorandum: The purchase offer and acceptance, apparently prepared by plaintiff, constitutes the only evidence as to his agreement with defendant in this record. We construe this instrument as creating no obligation on the defendant to pay commissions unless the purchasers were ready, able and willing to carry out the terms of the agreement. As of the closing date it is conceded they could not perform. As of the later date when it is claimed by the plaintiff that they were ready to close, there was a failure of proof that the mortgage on the Almond property to be used as part of the purchase price had “a value of $5,400”, as required by the purchase offer. In fact the only proof as to the value of that property was that it was assessed for $1,300. There was also a failure of direct proof by Mrs. Yan Wuyekhuyse that on the day in June when she attended at the county clerk’s office that she had $4,000 to pay over for the first mortgage on defendant’s property. Under the facts here shown there was nothing for the trial court to submit to the jury and the nonsuit motion was properly granted. All concur. (Appeal from a judgment dismissing the complaint in an action to recover real estate commissions.) Present — Taylor, P. J., Yaughan, Kimball, Piper and Wheeler, JJ.

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Judgment affirmed, with costs. Memorandum: The purchase offer and acceptance, apparently prepared by plaintiff, constitutes the only evidence as to his agreement with defendant in this record. We construe this instrument as creating no obligation on the defendant to pay commissions unless the purchasers were ready, able and willing to carry out the terms of the agreement. As of the closing date it is conceded they could not perform. As of the later date when it is claimed by the plaintiff that they were ready to close, there was a failure of proof that the mortgage on the Almond property to be used as part of the purchase price had “a value of $5,400”, as required by the purchase offer. In fact the only proof as to the value of that property was that it was assessed for $1,300. There was also a failure of direct proof by Mrs. Yan Wuyekhuyse that on the day in June when she attended at the county clerk’s office that she had $4,000 to pay over for the first mortgage on defendant’s property. Under the facts here shown there was nothing for the trial court to submit to the jury and the nonsuit motion was properly granted. All concur. (Appeal from a judgment dismissing the complaint in an action to recover real estate commissions.) Present — Taylor, P. J., Yaughan, Kimball, Piper and Wheeler, JJ.

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Bluebook (online)

281 A.D. 1074, 122 N.Y.S.2d 97, 1953 N.Y. App. Div. LEXIS 4374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klein-v-fisher-nyappdiv-1953.