Opinion
March 11, 1974
In an action to recover a brokerage commission, plaintiff appeals from a judgment of the Supreme Court, Rockland County, entered November 16, 1971, in favor of defendant, upon the trial court's dismissal of the complaint at the close of plaintiff's case at a nonjury trial. Judgment reversed, on the law and the facts, and new trial granted, with costs to abide the event. It was error to dismiss the complaint at the close of plaintiff's case. Proof sufficient to require rebuttal was introduced to show that plaintiff had produced a lender ready, willing and able to provide a mortgage at the terms set by defendant (see Lane — Real Estate Dept. Store v. Lawlet Corp., 28 N.Y.2d 36, 42). Proof was also offered to the effect that defendant had waived the provision in the brokerage agreement that the lender be an accredited lending institution. In this case defendant attached records to his brief which had not been received, or even offered, in evidence. We have heretofore called attention to the impropriety of such conduct ( People v. Purdy, 37 A.D.2d 734). Counsel do not help their clients by such improper conduct. Gulotta, P.J., Hopkins, Martuscello, Shapiro and Cohalan, JJ., concur.