Opinion
November 30, 1970
Appeal from a judgment of the County Court of Schenectady County in favor of plaintiff, entered June 3, 1969 upon a decision of the Court at a Trial Term, without a jury, as amended by an order entered October 3, 1969. Appellant, the owner of Green Street premises in Schenectady, and respondent, a real estate broker, reached an agreement whereby the former was to receive $35,000, upon a sale of the property, and the latter the amount above said figure for his commissions, $10,000 to be paid down and the seller to take a second mortgage. In January, 1967, the broker brought to the owner Robert Loehr who offered to purchase for $40,000. Appellant accepted a $100 deposit on February 28, 1967, with the closing scheduled to take place in 30 days, but in March, after the matter had been turned over to appellant's attorney for preparation of papers, Loehr notified the broker that the deal was off. Trial court found for the broker. In the absence of a stipulation to the contrary, a broker is entitled to his commission upon production of an individual who is ready, willing and able to accept the terms specified by the principal, notwithstanding the failure of the parties to enter into a contract or consummate the transaction ( Hecht v. Meller, 23 N.Y.2d 301, 305; Wagner v. Derecktor, 306 N.Y. 386, 390). The testimony that the owner had been unwilling to take back a second mortgage for $16,300, said sum constituting the balance of the sale price over and above the $100 deposit, $10,000 down payment and assumption of the existing $13,600 mortgage, justified the conclusion that the sale failed of completion through the seller's own fault (cf. Levy v. Lacey, 22 N.Y.2d 271, 276). It is clear that the prospect produced was ready and willing to purchase on the seller's requirements. Proof indicating that Loehr during the period in question had $10,000 in cash, approval of a $20,000 mortgage, a camp with a $10,500 equity and an Eastern Avenue property, which he sold later in 1967 for $32,000, demonstrated the requisite financial ability to purchase. It was not necessary to resort to Loehr's purchase of the subject property in November, 1967 in order to establish respondent's recovery, since the record supports the previous accrual of plaintiff's cause of action. Judgment affirmed, with costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.