Sbarra v. Beardsley

39 A.D.2d 1002, 333 N.Y.S.2d 434, 1972 N.Y. App. Div. LEXIS 4160

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1972
• Status: Published

Opinion

Appeal from a judgment of the County Court, entered December 16, 1970 in Broome County, unon a verdict rendered at a Trial Term in favor of plaintiff. Appellant, a real estate broker, brought this action to recover $4,200 in commissions allegedly due him as a result of a listing agreement between himself .and respondent. The parties first entered into an agreement whereby appellant was given a six-month exclusive right to sell respondent’s property which provided for a commission of 6%. This agreement was extended for 30 days with the following limitation: “ In case Mr. Beardsley advertises and sells his own property you will adjust commission between you. His desire would be not over $500. s/Phyllis Carpenter” The limitation was prepared by appellant’s agent. The property was ultimately sold to one Collins whose wife stopped at respondent’s house and was told by respondent’s wife that the property was for sale. It is conceded that appellant had no contact with Collins and respondent did no newspaper advertising. The ultimate sale price was $70,000. The issue presented was whether appellant was entitled to a full 6% commission under the extension agreement or to $500. The parties disagreed' as to the meaning of the language limiting the extension contract. The jury accepted respondent’s construction of the language and awarded appellant $500. We conclude that the proof presented a question of fact and since the meaning of the ambiguous language was resolved in respondent’s favor by the jury we should not disturb its verdict. Judgment affirmed, with costs. Herlihy, P. J., Greenblott, Sweeney, 'Simons and Kane, JJ., concur.