Wales v. Ripperger

262 A.D. 1062, 30 N.Y.S.2d 233, 1941 N.Y. App. Div. LEXIS 7212

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1941
• Status: Published

Opinion

Order of Monroe County Court and order of Rochester City Court reversed on the law, with ten dollars costs and disbursements, and motion in Rochester City Court denied, with ten dollars costs. Memorandum: We think that when the bank released the defendant, without the plaintiff’s consent, from his obligation to complete the purchase, reserving, however, its right to hold the defendant upon his agreement to pay commissions in case of non-performance on his part, it could be found that there arose a pecuniary obligation running from the defendant to the bank and from the bank to the plaintiff to pay commissions and that the plaintiff, under the circumstances, could adopt and claim the promise of the defendant to the bank as made for his benefit. All concur, Harris, J., in the following memorandum: The covenant in Exhibit “ A ” attached to the complaint may be construed as a covenant inserted by agreement of the parties thereto for the direct benefit of the plaintiff and made as a consideration for his securing the acceptance by the seller of the defendant’s offer. Such proof may be the basis of a cause of action herein (Seaver v. Ransom,, 224 N. Y. 233); except MeCurn, J., who dissents and votes for affirmance. (The order affirms an order of the Rochester City Court dismissing the complaint in an action by a real estate broker to recover commissions.) Present — Crosby, P. J., Cunningham, Dowling, Harris and MeCurn, JJ.