Mitchell v. Barnes , 117 N.Y.S.2d 95 ( 1952 )

In an action by a real estate broker to recover commissions for services, rendered in connection with a proposed sale of real property in the city of Yonkers, defendants appeal from an order denying their motion to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, pursuant to rule 106 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs, with leave to respondent to serve an amended complaint within ten days after the making of an order hereon. The brokerage agreement, as alleged in the complaint, was that liability for commission was not to be incurred until the purchasers paid defendants a certain sum of money upon the execution of a “superseding contract” of sale, and that payment of commission was to be made at the time of the closing of title. The complaint does not allege that the said payment was made. Johnston, Acting P. J., Adel, Wenzel, MaeCrate and Schmidt, JJ., concur.