Decided May 3, 1984
Appeal from the Supreme Court in the Second Judicial Department, William A. Walsh, Jr., J.
Michael B. Golden for appellant.
Michael Rikon for respondent.
The order of the Appellate Division should be reversed and a new trial granted.
Unless the parties have agreed otherwise, a real estate broker will be deemed to have earned his commission when he produces a purchaser who is not only ready and willing to purchase at the terms set by the seller, but able to do so as well. ( Lane — Real Estate Dept. Store v Lawlet Corp., 28 N.Y.2d 36, 42; Wagner v Derecktor, 306 N.Y. 386, 390; Blackmore v Wigne Land Corp., 97 A.D.2d 889.) There being no agreement to the contrary in this case, it was error for the trial court in its supplemental instruction to inform the jury that they were not to be concerned with the prospective buyer's financial capability to purchase "because that is not an element in this case". The prospective buyer's financial ability is indeed an essential element, and one which plaintiff was required to establish in order to recover. The erroneous instruction was particularly harmful here because it came in response to the jury's specific request for clarification on that very issue.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, with costs, and a new trial granted in a memorandum.