Spero v. Kobler ( 1935 )

Lydon, J.

The action is to recover brokerage claimed to have been earned upon a sale of defendant’s real property. The special contract between the parties provided that that part of the brokerage here sued for should be paid “if, as and when title is taken by the purchaser.” Title was not taken by the purchaser. At the time appointed for the closing it was discovered that a lis pendens had been filed against the property a few days before. The closing was adjourned for three days. On the adjourned day the Us pendens had not been removed. The purchaser objected to taking title on that ground. Defendant consented to the abrogation of the contract of sale, refunded the down payment to the purchaser and reimbursed him for expenses incurred in examination of the title. He claims that under his agreement with plaintiff he is not hable for the brokerage sued for.

Defendant concedes that if he had been unable to tender a good title he would not have been relieved of his obligation to his broker. But he points out that the mere filing of a Us pendens against his property did not make his title unmarketable (Simon v. Vanderveer, 155 N. Y. 377), and shows that the complaint, on which the lis pendens was founded, was shortly afterwards dismissed for insufficiency. Hence, he insists, the purchaser had no right to reject the title.

In all this defendant is doubtless right. But it follows that defendant ought to have tendered his deed of conveyance and demanded performance. Instead of doing this he acquiesced in the objection of the purchaser. This he could not properly do without making himself hable to the broker. He had the right to be as lenient, or as generous, with the purchaser as he chose, but only at his own expense.

It is quite true that if defendant had tendered his deed and stood on bis rights, and the purchaser had still refused to perform, defendant would not have been required to sue the purchaser in order to escape liability to the broker. (Amies v. Wesnofske, 255 N. Y, 156.) But when he recognized a concededly improper objection as good and consented to the repudiation by the purchaser of his contract, he failed in his duty to the broker. It was not a case of merely passive submission to a breach of contract by the purchaser. It was a release of the purchaser from his obligation by an affirmative act. The vendor is, therefore, hable to the broker to the same extent as if the failure to pass title had been due to a default in performance on his part.

The judgment should be affirmed, with costs.

Hammer, J., concurs; Frajstkenthaler, J., dissents.