Appellate Terms of the Supreme Court of New York, 1913

Hurwitz v. Duzin

Appellate Terms of the Supreme Court of New York · Decided November 13, 1913 · Seabury

143 N.Y.S. 942 (New York Supplement)

Counsel

Louis J. Finkelstein, of New York City (Adolph Cohen, of New York City, of counsel), for appellant., Joseph Sapinsky, of New York City (Alvin T. Sapinsky, of New York City, of counsel), for respondent.

Opinion of the Court

SEABURY, J.

[1] Plaintiff sues to recover a brokerage commission alleged to have been earned in procuring a proposed purchaser for defendant’s newspaper route. The defendant and the proposed purchaser, whom the plaintiff procured, signed a contract which provided that:

“David Hurwitz [plaintiff] is the broker who brought about this sale, and the said Adam Duzin [defendant] does hereby agree to pay the said David Hurwitz the sum of $62.50 as commissions, in lawful money of the United States of America.”

Upon the trial the defendant claimed that this agreement to pay the plaintiff was contingent upon Shoerman, the proposed purchaser, paying the balance stated to be due under the contract. ■ This claim is contrary to the unconditional promise of the defendant to pay the plaintiff, which is expressed in the contract which the defendant signed.

[2] The contract contained a guaranty by the defendant that the newspaper route earned—

“a weekly clear profit of not less than $40 a week, less delivery 75 cents.”

It was because the proposed purchaser claimed that this representation was untrue that he refused to purchase the route. The act of the proposed purchaser in refusing to complete the purchase did not, under the circumstances disclosed, preclude the plaintiff from recovering his commission.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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