West's Farm Agency, Inc. v. Coxson

12 A.D.2d 989, 214 N.Y.S.2d 685, 1961 N.Y. App. Div. LEXIS 12613

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 1961
• Status: Published

Opinion

Order affirmed, with $25 costs and disbursements. All concur, except Williams, P. J., and Bastow, J., who vote to affirm as to Charles Coxson but dissent as to Eleanor Coxson, and John and Beatrice Wiseman and vote for summary judgment in favor of those defendants against the plaintiff, in the following memorandum: The defendants have moved for summary judgment. The action is for real estate brokerage commissions. It appears that defendants are co-owners of real property which the plaintiff, acting as a real estate broker, endeavored to sell. The plaintiff may have procured an offer satisfactory to the defendant Charles Coxson, but there is no evidentiary showing that such offer was satisfactory to or accepted by any of the other defendants. In fact, the affidavits, and testimony taken upon examinations before trial submitted upon the motion, definitely show that the other three defendants refused to accept the proposed offer and never agreed to its terms. Nor is there proof of an actual or implied agency in Charles Coxson, to bind the other defendants in authorizing or accepting the terms of the offer. Any such agency is specifically negatived. Judgments should be awarded in favor of defendants Eleanor Coxson, John Wiseman and Beatrice Wiseman, and the motion should be denied as to Charles Coxson (Rules Civ. Prac., rule 114). (Appeal from order of Chautauqua County Court denying defendants’ motion for summary judgment.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.