Benenson Management Co. v. Banner Holding Corp.

Rabin, J. (concurring in result).

While I concur in the result reached by the court, I do not rest my vote for reversal on the ground relied upon by the majority. I do not believe that at this juncture the brokerage agreement and its “ waiver ” provisions constitute a complete defense to this action. While the brokerage agreement here is identical with that presented in Wenger v. Lefrak (279 App. Div. 993, affd. 305 N. Y. 656) there is a most important distinction between the two eases. In the Wenger ease the default of the seller was postcontract, whereas in the instant case no contract was…