Pearce v. Racanelli

Appellate Division of the Supreme Court of New York

Pearce v. Racanelli

10 A.D.2d 684, 197 N.Y.S.2d 513, 1960 N.Y. App. Div. LEXIS 11305

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

DecidedMarch 15, 1960

StatusPublished

This text of 10 A.D.2d 684 (Pearce v. Racanelli) 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

Pearce v. Racanelli, 10 A.D.2d 684, 197 N.Y.S.2d 513, 1960 N.Y. App. Div. LEXIS 11305 (N.Y. Ct. App. 1960).

Pincite

Opinion

Judgment granted under rule 113 of the Rules of Civil Practice unanimously modified, on the law, summary judgment in favor of plaintiffs against defendants denied, and so much of the judgment as dismissed the third-party complaint against the third-party defendant and denied defendants’ motion for summary judgment affirmed, with costs of the appeal to defendants against plaintiffs and to the third-party defendant against the third-party plaintiffs. The undisputed facts provide no basis in law for indemnification of the sellers by the buyer, because the buyer’s obligation was always conditional upon title passing. As between the brokers and the sellers, if the proof were confined, as perhaps it may eventually be, to the several documents, then an unconditional substitution of a new, but unperformed, agreement for the payment of a commission by the buyer would have been made out and no commission would be owed by the sellers. A different interpretation, however, may be justified by proof, if otherwise competent (and on that the court does not now pass), of the surrounding circumstances. Moreover, on the appeal sellers have not persisted in their demand for summary judgment in their favor but argue that there are issues of fact to be tried. Concur — Breitel, J. P., M. M. Frank, McNally, Stevens and Bastow, JJ.

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Judgment granted under rule 113 of the Rules of Civil Practice unanimously modified, on the law, summary judgment in favor of plaintiffs against defendants denied, and so much of the judgment as dismissed the third-party complaint against the third-party defendant and denied defendants’ motion for summary judgment affirmed, with costs of the appeal to defendants against plaintiffs and to the third-party defendant against the third-party plaintiffs. The undisputed facts provide no basis in law for indemnification of the sellers by the buyer, because the buyer’s obligation was always conditional upon title passing. As between the brokers and the sellers, if the proof were confined, as perhaps it may eventually be, to the several documents, then an unconditional substitution of a new, but unperformed, agreement for the payment of a commission by the buyer would have been made out and no commission would be owed by the sellers. A different interpretation, however, may be justified by proof, if otherwise competent (and on that the court does not now pass), of the surrounding circumstances. Moreover, on the appeal sellers have not persisted in their demand for summary judgment in their favor but argue that there are issues of fact to be tried. Concur — Breitel, J. P., M. M. Frank, McNally, Stevens and Bastow, JJ.

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Bluebook (online)

10 A.D.2d 684, 197 N.Y.S.2d 513, 1960 N.Y. App. Div. LEXIS 11305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearce-v-racanelli-nyappdiv-1960.