Barnett Schnitzer, Respondent, v. Joseph Price, Appellant

Barnett Schnitzer, Respondent, v. Joseph Price, Appellant. Second Department, November 22, 1907. Principal and agent — real estate broker—financial ability of proposed purchaser. Evidence that the proposed purchaser of lands produced by a broker possessed ■ assets consisting of a stock of groceries of a value not shown and a cause of action for §10,000 or §12,000 against third parties for money loaned, but had no funds in his possession, is not sufficient to show his ability to make a ca^h payment of §25,000 on the land. Appeal by the defendant, Joseph Price, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of December, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to 'bring up for review an order entered on the 10th day of December, 1906,. denying the defendant’s motion to change the place of trial of the action. Clarence L. Barber, for the appellant. Jacob Gordon, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: This is an action for broker’s commissions. No contract was entered into by the principals, and the only question involved is whether the plaintiff showed that he produced a purchaser able to purchase on the defendant’s terms. One of the terms was a cash payment of $25,000. The proposed purchaser testified that he had in his possession funds sufficient to cany out the contract, but his cross-examination showed that his assets consisted of a stock of groceries, the value of which was not shown, and a cause of action for $10,000 or $12,000 against third parties for .money loaned, and that he liad no funds in his possession. I think this fell short of proving his ability to pay $25,000 cash, and advise that the judgment and order be reversed. Jenks, Hooker, Gaynor and Rich, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.