Seaboard Investing Co., Inc., Appellant, v. Gumbel & Neal, Inc., Respondent

Seaboard Investing Co., Inc., Appellant, v. Gumbel & Neal, Inc., Respondent. First Department, February 4, 1927. Brokers — loan brokers — action for commissions — proof does not show essential elements of cause of action—new trial granted since missing evidence may be furnished thereon. In an action by a loan broker to recover commissions on the theory that he had procured a person ready, willing and able to make the loan, the plaintiff’s evidence failed to establish the essential elements of the cause of action, since as to one accepted lender there was no proof that it was ready and willing to make the loan, and as to the other lender there was no proof of acceptance by the defendant or of the lender’s ability to make the loan. However, since the missing evidence may possibly be adduced, a new trial is granted. Appeal by the plaintiff, Seaboard Investing Co., Inc., from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 16th day of June, 1926, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District, in favor of the plaintiff. Henry Woog, for the appellant. James E. Smyth of counsel [Richards, Smyth & Conway, attorneys], for the respondent. [MAJORITY — Per Curiam.] Per Curiam. Plaintiff’s peculiar contract entitled it to commissions upon its procuring an acceptance of the loan by a ready, able and willing lender. There was a failure of proof that the Standard Bank, which was accepted by defendant as a satisfactory lender, was ready and willing to make the loan. There was also a failure of proof that the defendant ever signified its approval of the Standard National Corporation as a satisfactory lender or that that corporation was able to make the loan. The essential elements of this missing evidence may possib y be adduced on a -new trial. Therefore, the determination of the Appellate Term should be modified by striking therefrom, after the word “ reversed,” the words “ with $30 costs, and the complaint dismissed on the merits, with costs,” and substituting therefor the words “ and a new trial ordered, with costs to the appellant to abide the event; ” and as so modified affirmed, without costs to either party of this appeal. Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ. Determination modified by strildng therefrom the words “ with $30 costs, and the complaint dismissed on the merits, with costs,” and by inserting in place thereof the words “ and a new trial ordered, with costs to the appellant to abide the event,” and as so modified affirmed, without costs to either party of this appeal.