Pearce v. Racanelli , 10 A.D.2d 684 ( 1960 )

Judgment granted under rule 113 of the Rules of Civil Practice unanimously modified, on the law, summary judgment in favor of plaintiffs against defendants denied, and so much of the judgment as dismissed the third-party complaint against the third-party defendant and denied defendants’ motion for summary judgment affirmed, with costs of the appeal to defendants against plaintiffs and to the third-party defendant against the third-party plaintiffs. The undisputed facts provide no basis in law for indemnification of the sellers by the buyer, because the buyer’s obligation was always conditional upon title passing. As between the brokers and the sellers, if the proof were confined, as perhaps it may eventually be, to the several documents, then an unconditional substitution of a new, but unperformed, agreement for the payment of a commission by the buyer would have been made out and no commission would be owed by the sellers. A different interpretation, however, may be justified by proof, if otherwise competent (and on that the court does not now pass), of the surrounding circumstances. Moreover, on the appeal sellers have not persisted in their demand for summary judgment in their favor but argue that there are issues of fact to be tried. Concur — Breitel, J. P., M. M. Frank, McNally, Stevens and Bastow, JJ.