Miller v. Rossiter

The action was for brokerage commission earned in procuring a purchaser ready, willing and able to buy on defendant’s terms. A contract of sale was entered into. Immediately thereafter the broker made an agreement to wait for the payment of his commission “ when, as and if title closes.” Objections were made to the title and by mutual agreement the contract was rescinded; the money paid on account returned to the purchaser and the defendants paid the expenses incurred by the purchaser.

The brokerage commission, in this case, was earned when the contract was entered into. The agreement made by the broker was without consideration and unenforcible. (Reis Co. v. Zimmerli, 224 N. Y. 351.)

Judgment reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Guy, Wasservogel and Glennon, JJ.