Schroff v. Bauer
The Superior Court of New York City
Appeal from, judgment and order denying defendant’s motion for a new trial made on the judge’s minutes. The action was for the recovery of a commission, fixed by the agreement of the parties, at $140 00, and claimed to have been earned by the plaintiffs, as brokers, in affecting a sale of defendant’s house to one Kaesinger.
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Appeal from, judgment and order denying defendant’s motion for a new trial made on the judge’s minutes. The action was for the recovery of a commission, fixed by the agreement of the parties, at $140 00, and claimed to have been earned by the plaintiffs, as brokers, in affecting a sale of defendant’s house to one Kaesinger. The defendant admitted the employment, and the agreement to pay the said sum of $140 00, but averred, that said agreement was on the express condition, that the purchase should be first completed, the title passed and the purchase price paid, which had not been performed.…
1Opinion of the Court
By the court, Freedman, J.
In looking over the evidence, and considering it in the light most favorable to the defendant, it seems clear, that the learned judge who tried this case, found that the defendant had waived the condition originally annexed to his promise. Whether or not such waiver had taken place, was a question of fact to be deduced from the whole evidence, which was uncontradicted. The defendant might have insisted upon its submission to the jury, and if such request had been made in terms, it would probably have been error to refuse it. But the defendant did not see fit to do…
2Cases cited9 opinions
- Winchell v. . HicksNew York Court of Appeals · 1859
- Plumb v. . Cattaraugus Co. Mutual Insurance Company.New York Court of Appeals · 1858
- Graser v. . StellwagenNew York Court of Appeals · 1862
- Dows v. RushNew York Supreme Court · 1858
- Seymour v. CowingNew York Court of Appeals · 1864
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