Duchen v. Abitbol , 283 A.D. 1089 ( 1954 )

In this action by the owner of certain real property for specific performance of an alleged written contract for the sale thereof, defendant counterclaimed for the return of the deposit. The writing in question, a partially printed form supplied by the broker and signed by defendant, provided that the sale was to be for all cash, that the deposit was accepted by the broker subject to the owner’s approval, that “If Owner fails to accept within 5 days from above date this deposit shall be refunded, but if the Owner executes this !i 41 agreement in the manner herein below indicated, this deposit shall be binding”. Below, after a recital of agreement to the sale, a place is provided for the owner’s signature. There was testimony that the broker undertook to obtain a mortgage for about half the purchase price, and that before signing said “ agreement ” and giving his check as a deposit, defendant told the broker not to give the papers to the owner unless he had a commitment for such mortgage at 4% interest; that thereafter the broker informed defendant that he was unable to obtain such commitment, following which defendant informed plaintiff’s attorney that the offer to purchase was withdrawn; that thereupon said attorney obtained the aforesaid “agreement” and the check from the broker and had plaintiff sign the “agreement” and indorse the check. The Special Term, holding that defendant’s delivery of the instruments in question to the broker was conditional and that the offer to purchase was withdrawn before its aeceptanee, dismissed the complaint after trial and awarded defendant return of his deposit on his counterclaim. Plaintiff appeals from the judgment entered thereon. Judgment unanimously affirmed, with costs. No opinion. Present — Wenzel, Acting P. J., MaeCrate, Schmidt, Beldock and Murphy, JJ.