Appellate Division of the Supreme Court of New York, Fourth DepartmentMay 27, 1953
281 App. Div. 1074 (N.Y. App. Div. 1953)

May 27, 1953.

Present — Taylor, P.J., Vaughan, Kimball, Piper and Wheeler, JJ.

Judgment affirmed, with costs. Memorandum: The purchase offer and acceptance, apparently prepared by plaintiff, constitutes the only evidence as to his agreement with defendant in this record. We construe this instrument as creating no obligation on the defendant to pay commissions unless the purchasers were ready, able and willing to carry out the terms of the agreement. As of the closing date it is conceded they could not perform. As of the later date when it is claimed by the plaintiff that they were ready to close, there was a failure of proof that the mortgage on the Almond property to be used as part of the purchase price had "a value of $5,400", as required by the purchase offer. In fact the only proof as to the value of that property was that it was assessed for $1,300. There was also a failure of direct proof by Mrs. Van Wuyckhuyse that on the day in June when she attended at the county clerk's office that she had $4,000 to pay over for the first mortgage on defendant's property. Under the facts here shown there was nothing for the trial court to submit to the jury and the nonsuit motion was properly granted. All concur. (Appeal from a judgment dismissing the complaint in an action to recover real estate commissions.)