Opinion
April 24, 1944.
Present — Close, P.J., Hagarty, Carswell, Johnston and Lewis, JJ. [ 181 Misc. 318.]
Plaintiff, a real estate broker, sues defendants, the purchasers of real property, to recover as damages the commissions he would have received from the seller of such property if defendants had not breached an alleged contract of employment. Order granting defendants' motion to dismiss the complaint, and the judgment entered thereon, unanimously affirmed, with ten dollars costs and disbursements. It is not alleged that defendants agreed to constitute plaintiff their exclusive agent or that plaintiff procured the owner to sell the property to defendants. Nor are there any factual allegations that plaintiff could have negotiated the sale ultimately consummated had it not been for defendants' fraud or deceit. Nor is it alleged that defendants, as prospective purchasers, expressly or impliedly agreed to pay commissions. In fact, it is alleged the commissions were to be paid by the seller. In the absence of such allegations the complaint does not state a cause of action. ( Greene v. Brown, 256 App. Div. 1103, affd. 281 N.Y. 742; Grossman v. Herman, 240 App. Div. 525, affd. 266 N.Y. 249; Newberry Co. v. Warnecke Co., 267 App. Div. 418, and cases cited.)