Moskowitz v. Preferred Investing Co.

Greenbaum, J. (dissenting):

Defendant, if acting in good faith, had the right to terminate plaintiffs’ agency. He, therefore, had the right to tell plaintiffs that he desired them to discontinue their theretofore unsuccessful efforts to bring about the exchange of the properties for which he was negotiating. (Sibbald v. Bethlehem Iron Company, 83 N. Y. 378; Donovan v. Weed, 182 id. 43.) It would seem to follow that the alleged promise to plaintiffs made by defendant through his attorney, that they would be paid their commissions in case defendant successfully negotiated the exchange, was -without consideration. But assuming that such a promise was made, based upon a sufficient consideration, it appears as matter of fact that the defendant never succeeded in accomplishing an exchange of the properties as to which plaintiffs had been negotiating, and that the defendant’s property was finally sold through the' efforts of another broker who was paid commissions, and hence plaintiffs were not entitled to a recovery. The judgment should be reversed.