Opinion
October 24, 1949.
In an action by a real estate broker to recover damages from the purchaser of real property, order denying defendant's motion to dismiss the complaint reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs, with leave to respondent to serve an amended complaint within ten days from the entry of order hereon, if so advised. We do not find from the facts alleged in this complaint or fairly inferable therefrom, that respondent had a valid or enforcible contract with appellant from the breach of which the damage sought resulted. ( Newberry Co. v. Warnecke Co., 267 App. Div. 418, affd. 293 N.Y. 698; Panay v. Zobanakis, 275 App. Div. 911; Sieven v. Glazer, 267 App. Div. 969, affg. 181 Misc. 318); nor that the respondent had performed his contract with the vendor and would have been entitled to the balance of his full commissions from the vendor had not the appellant interfered with the vendor's performance of that contract. ( Portman v. Burack, 265 App. Div. 959, affd. 290 N.Y. 686; Lamb. v. Cheney Son, 227 N.Y. 418.) Carswell, Adel, Sneed and Wenzel, JJ., concur; Nolan, P.J., dissents and votes to affirm, being of opinion that the complaint sufficiently states a cause of action for damages for breach of an express contract between appellant and respondent. The contract pleaded may be unenforcible, as involving a breach by respondent of his obligation of undivided loyalty to his employer. (Cf. Greenfield v. Bausch, 238 App. Div. 52, and Myerberg v. Webster, 269 App. Div. 65.) That question, however, should not be decided on the pleadings, since it may be established on trial that the contract pleaded was valid and enforcible, at least in part. (Cf. Gracie v. Stevens, 56 App. Div. 203, affd. 171 N.Y. 658, and Knauss v. Krueger Brewing Co., 142 N.Y. 70.)