Lefton v. Wiener

231 A.D. 871

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1930
• Status: Published

Opinion

Judgment reversed upon the law and the facts, with costs, and judgment directed in favor of plaintiffs, with costs. In this action plaintiffs sought to recover commissions against defendant Carner for bringing about the exchange of his real property at Hunter, N. Y., for property owned, by defendant Wiener in New York city. The agreement between the plaintiffs and defendants provided that the plaintiffs were not entitled to commissions if the title to either parcel was “ unmarketable for any reason.” It appears in the record that th« terms of the mortgages upon defendant Wiener’s property were not in conformity with the contract entered into between the defendants, and that there was a small judgment, a lien against defendant Wiener’s property. The evidence is that Wiener rejected Garner’s title for the reason that Carner had removed paraphernalia from his property at Hunter, which consisted of a hotel. There is no evidence that Carner questioned the marketability or the sufficiency of Wiener’s title under the contract. The learned trial court was in error in directing judgment in favor of the defendant for the reason that Carner rejected Wiener’s title because of unmarketability. Lazansky, P. J., Young, Kapper, Hagarty and Tompkins, JJ., concur.