Seaboard Investing Co. v. Gumbel & Neal, Inc.

Plaintiff’s peculiar contract entitled it to commissions upon its procuring an acceptance of the loan by a ready, able and willing lender. There was a failure of proof that the Standard Bank, which was accepted by defendant as a satisfactory lender, was ready and willing to make the loan. There was also a failure of proof that the defendant ever signified its approval of the Standard National Corporation as a satisfactory lender or *241that that corporation was able to make the loan. The essential elements of this missing evidence may possib y be adduced on a -new trial. Therefore, the determination of the Appellate Term should be modified by striking therefrom, after the word “ reversed,” the words “ with $30 costs, and the complaint dismissed on the merits, with costs,” and substituting therefor the words “ and a new trial ordered, with costs to the appellant to abide the event; ” and as so modified affirmed, without costs to either party of this appeal.

Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.

Determination modified by strildng therefrom the words “ with $30 costs, and the complaint dismissed on the merits, with costs,” and by inserting in place thereof the words “ and a new trial ordered, with costs to the appellant to abide the event,” and as so modified affirmed, without costs to either party of this appeal.