Altman v. Casale , 25 A.D.2d 877 ( 1966 )

In an action by real estate brokers to recover a commission (first cause) and damages for fraudulently inducing the breach of their contract for the commission (second cause), defendant Audrey Weiss appeals, as limited by her biief, from so much of a judgment of the Supreme Court, Westchester County, entered May 19, 1964, as is in plaintiffs’ favor against her (on the second cause), upon a jury verdict. Judgment reversed insofar as appealed from, on the law and the facts, with costs, and complaint as against appellant dismissed. In May, 1959 plaintiffs showed defendant Audrey Weiss the property in question along with a number of other properties. She viewed the property in its then incompleted state for 10 minutes and then informed plaintiffs’ representatives that she was interested in a completed property only and had no interest in that area. Five months later she and her husband purchased the property. They represented to the sellers that no broker was involved in the transaction. In our opinion the proof did not establish that the negotiations had as yet passed that critical stage at which the broker lost a commission rather than “merely a wishful dream of commissions” (Williams & Co. v. Collins Tuttle & Co., 6 A D 2d 302, 308). Further, it is implausible to infer from these facts that appellant formulated a scheme to deprive the brokers of commissions by purchasing the house five months later at a reduced price. Fraud is established only where facts are proved from which it results as an unavoidable inference (Matter of Smith, 180 App. Div. 669, 674).

Ughetta, Acting P. J., Christ, Rabin and Benjamin, JJ., concur; Hill, J., dissents and votes to affirm the judgment insofar as appealed from.