Judis v. V. B. Holding Corp.

Per Curiam. The action was for damages for breach by the corporate defendant, the owner of certain real estate, of an alleged agreement to accept a purchaser procured by the plaintiff, a real estate broker. The appeal is by the defendant V. B. Holding Corporation from a judgment which the plaintiff has recovered against it as damages for the commissions which the prospective purchaser was ready to pay, and which plaintiff was precluded from earning, by reason of defendant’s alleged refusal to consummate the sale of the property. Prior to the trial, the action was discontinued as against the other defendants. Upon the evidence, we are of the view that no agreement of employment, either express or implied, was shown between the plaintiff and the defendant. In the absence thereof, plaintiff could not recover from the defendant any brokerage commissions, nor could plaintiff recover as damages the sum which plaintiff would have earned as commissions from the prospective purchaser had the latter and defendant entered into a contract of sale. (Grossman v. Herman, 266 N. Y. 249; Barrett v. Lang, 243 App. Div. 35, 39-41; affd., 269 N. Y. 511; Meltzer v. Flying Fame, Inc., 224 App. Div. 41; Goff v. Adelson, 229 id. 802.) Even were we to assume that plaintiff had in fact been employed by defendant to find a purchaser, the plaintiff nevertheless failed to bring about a meeting of the minds between the defendant and the prospective purchaser, not only as to the sum the defendant was to be paid for its equity in its property, but also as to other essential terms of the transaction. We are of the opinion that plaintiff failed to establish any cause of action against the defendant. The judgment accordingly should be reversed, with costs, and the complaint dismissed upon the merits, with costs. Present —Martin, P. J., O’Malley, Untermyer, Dore and Cohn, JJ.; O’Malley and Untermyer, JJ., dissent and vote for affirmance.