Geoghegan v. Kelly

Pryor, J. Action to recover an agreed compensation of $125, for negotiating, as broker, a sale of defendant’s stock and fixtures in the store No. 368 Tenth avenue, New York city. The employment of plaintiff by defendant for the purpose stated, and the agreement to pay the $125, were not controverted. And, by conclusive evidence, it was established that plaintiff brought to defendant a purchaser who was able and ready to pay the price demanded by the seller; that the buyer and seller agreed upon terms; that a contract of sale was reduced to writing and signed by defendant, the seller; and that $100, part payment of the purchase price, was received and retained by the seller. By all authorities this was sufficient to entitle plaintiff to compensation. Sibbald v. Iron Co., 83 N. Y. 378, 382; Smith v. McGovern, 65 N. Y. 575; Moses v. Bierling, 31 N. Y. 462; Wall v. Illuminating Co., 4 N. Y. Supp. 697. The fact that the carrying out of the contract was conditioned, on the consent of the landlord and mortgagee, did not affect the completeness or validity of the agreement, but related only to the fulfillment of the contract; and that consent was duly obtained, so that no obstacle existed to the execution of the contract. True it is, that, subsequently to the part payment, the buyer refused to carry out the agreement; but that was no fault of plaintiff. The inadvertent error in the notes was promptly corrected. Defendant has his redress against the buyer on the contract, and, if more were needed to perfect plaintiff’s right of action, that supplies it. Barnes v. Roberts, 5 Bosw. 73; Glentworth v. Luther, 21 Barb. 147; Tombs v. Alexander, 101 Mass. 255; Hunter v. Wetsell, 84 N. Y. 549; Jackson v. Tupper, 101 N. Y. 515, 5 N. E. Rep. 65; Mason v. Decker, 72 N. Y. 595. Judgment affirmed, with costs. AH concur.