Opinion
July 1, 1925.
Emanuel Mehl, for the appellants.
Edward Baruch, for the respondents.
Judgments unanimously reversed upon the law and new trial granted, with thirty dollars costs to appellants to abide the event.
It was error for the trial court to deny plaintiffs' motion to bring in the third broker. Having granted defendants' motion to amend their answer by pleading a defect of parties, plaintiffs' motion to bring in the additional party should have been granted. (Civ. Prac. Act, § 192.) If it were necessary to adjourn the trial, that could have been done in the interest of justice. We think the plaintiffs made out a prima facie case. The paper called the receipt (Plaintiffs' exhibit 1) seems to contain all the terms of the agreement, and, although crudely drawn, it shows what each party had agreed to do. The fact that the buyer's name is therein stated as "Bernstein," when in fact it was "Schneider," does not affect it, as the proof showed that Bernstein was the agent of Schneider. ( Byrne v. McDonough, 114 Misc. 529; affd., on opinion below, 198 A.D. 908.) The paper was signed by the party produced by the plaintiffs. We assume, from the state of the record, that the other copy of it was signed by defendants. If so, it was enforcible by and against both parties to it. In any event the parties orally agreed upon all the terms of the exchange and thereby the defendants accepted the party produced by plaintiffs and the latter were thus relieved of showing the ability of their party to carry out the agreement. ( Brand v. Nagle, 122 A.D. 490.) The proof shows the defendants refused to go on with the transaction, not, however, because they were not satisfied with the mortgages they were to get in part payment, but solely because they insisted upon receiving more cash at the time of signing the formal contract than they had agreed to accept. The provision in the signed paper that no commissions were to be paid unless formal contract was made and then only when title passed subject to approval of contract, is not binding upon the plaintiffs. They were not parties to it. Besides, it was the fault of defendants that the deal was not consummated.
Present: CROPSEY, LAZANSKY and MacCRATE, JJ.