Levy v. Isaacs

285 A.D. 1170, 140 N.Y.S.2d 519, 1955 N.Y. App. Div. LEXIS 7039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1955
• Status: Published

Opinion

In an action by a broker to recover commissions for the sale of real property, pursuant to a written agreement, defendant (the former owner) appeals from an order upon reargument, denying his motion for judgment on the pleadings and for summary judgment. Order of the City Court of Mount Vernon modified by striking from the ordering paragraph everything following the word “ defendant” and by substituting therefor the words “for judgment on the pleadings he and the same hereby is granted, and in all other respects denied.” As so modified, order affirmed, with $10 costs and disbursements to appellant. The complaint alleges that plaintiff was employed as the “ sole and exclusive agent ” of defendant for the sale of defendant’s property. This created an exclusive agency as distinguished from an exclusive right of sale. Under an exclusive agency agreement, an owner may make a sale himself, without the broker’s aid, and, if the sale is made in good faith to a purchaser not procured by the broker, the owner does not become liable for commissions to the broker. {Werner V. Eurieh, 263 App. Div. 744; Slattery v. Cothran, 210 App. Div. 583!,. and cases cited therein.) Plaintiff does not allege that he procured the purchaser or participated in any manner, directly or indirectly, in the negotiations'.- Nolan, P. J., Wenzel, MacCrate, Beldock and Ughetta, JJ., concur.