Sugarman v. Kearns

Guy, J. This action was brought to recover $200 brokers’ commissions alleged to be due plaintiffs for procuring an acceptance of an assignment of a first mortgage loan of $4,000 with an extension thereof for five years, on premises No. 241 East One Hundred and [451] Twenty-third street, New York city, at five and a half per cent, per annum, within two days from September 15, 1913. The answer sets up a general denial. The contract, which was in writing, provided for any necessary subordination agreement (in relation to the second mortgage), but was silent as to 'any estoppel certificates on junior mortgages. Plaintiffs, claiming to act as defendant’s agent, signed an application to the title company for a loan, but no mention was made therein as to defendant procuring such estoppel certificates from subsequent mortgagees as might be requested by the title company. On September 15, 1913, plaintiffs procured from the title company, whose client mortgage company held .the first mortgage, a written conditional agreement to make said loan, to be a first lien on the premises 241 East One Hundred and Twenty-third street, the mortgage to run for five years at five and a half per cent, interest “ subject to the requirements and regulations of this company.” What these requirements and regulations were, the conditional acceptance did not disclose. ' The parties met for the purpose of closing the transaction, when the attorney representing the mortgage company demanded an estoppel certificate from the holder of an alleged unpaid third mortgage on which no interest had been paid- for over twenty years, and, because defendant could not produce the desired estoppel certificate, the closing fell through. The legal effect of the conditional acceptance the title company signed was simply an agreement to make a loan and to accept an assignment of the mortgage held by defendant, as security therefor, subject to any requirement it might see fit to impose, or at its pleasure. The procuring of such a conditional acceptance by plaintiffs was not such a performance of the [452] brokers’ duty as would entitle them to commissions. Holliday v. Roxbury Distilling Co., 130 App. Div. 654, 656, 657; Duckworth v. Rogers, 109 id. 168, 169, 170; Ashfield v. Case, 93 id. 452, 453; Crastro v. White, 52 Hun, 473, 476, 477; Steele v. Lippman, 115 N. Y. Supp. 1099, 1100. The plaintiffs having failed to perform- their contract to obtain a loan for defendant, based on the acceptance by the lender of an assignment of defendant’s mortgage as security, have established no cause of action against the defendant. The judgment must, therefore, be reversed with costs, and the complaint dismissed, with costs. Seabury and Delany, JJ., concur. Judgment reversed, with costs, and complaint dismissed, with costs.