Hess v. Eggers

Freedman, P. J. The action was originally brought by Morris Hess, a loan broker, who claimed that, for services rendered by him to the defendant in procuring for the defendant from the Metropolitan Life Insurance Company a loan on defendant’s real estate, there was due and owing to him the sum of <$1,335. After his death the action was revived in the name of the plaintiffs as his administrators. The case was submitted to the jury on a disputed question of fact and their finding upon it in favor of the defendant presents no question for review by this court. But, independently of that, the evidence conclusively shows that Morris Hess was not entitled to anything unless the loan was actually made to the defendant. The Metropolitan Life Insurance Company never made it, and the evidence is utterly insufficient to establish that it was the fault of the defendant. Gatling v. Central Spar Verein, 67 App. Div. 50. Moreover, the complaint pleaded full performance and not an excuse or waiver for nonperformance. Under such a complaint the plaintiffs were not entitled to introduce proof to show that the failure to procure the loan was chargeable to the defendant, Schnaier v. Nathan, 31 App. Div. 225; Elting v. Dayton, 43 N. Y. St. Repr. 363; affd., 144 N. Y. 644; Bossert v. Poerschke, 51 App. Div. 381. And finally, even if the evidence were not as conclusive as it is, that the broker’s compensation for procuring the loan was by the express agreement of the parties “ to be deducted from the loan on the day of closing,” the plaintiffs, under" the rule laid down in Crasto v. White, 52 Hun, 473, would still be unable to recover except upon proof that the loan was actually made. For the foregoing reasons it is unnecessary to discuss the remaining questions in the case. The judgment should be affirmed, with costs. Tbuax and Gildeesleeve, JJ., concur. Judgment affirmed, with costs.