Werner v. Eurich

Full title: DAVID WERNER, Respondent, v. HENRY EURICH, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 24, 1941

263 App. Div. 744 (N.Y. App. Div. 1941)

Opinion

November 24, 1941.

In an action to recover commissions under a contract between a broker and vendor of real property, the vendor having made the sale without the aid of the broker, order of the County Court, Orange County, denying defendant's motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action, reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs. The contract appears as matter of law to be one of exclusive agency, and not one of exclusive right of sale. Furthermore, it seems to be undisputed that the contract language was chosen by the plaintiff. Hence, in so far as the meaning of the language in the written contract may be doubtful, it is to be construed most favorably to the defendant.

Carswell, Adel and Close, JJ., concur;

Lazansky, P.J., dissents and votes to affirm the order upon the ground that the agreement is ambiguous and determination should await a trial at which testimony may be adduced as to the precise meaning of the agreement; Hagarty, J., dissents and votes to affirm the order, with the following memorandum:

My view is that an exclusive right of sale was granted by the contract, as evidenced by the recitation of the consideration at the outset of the third paragraph of the contract. That paragraph contemplated the creation of a market for the property by the efforts of the broker.