The action is by a broker against the Gepo Realty Corp., the owner of real property situated at Long Beach, L. I. The plaintiff’s cobroker is named as a defendant because he has refused to become a party plaintiff in the action.
It is conceded that the brokers procured a buyer who entered into a written contract for the purchase of the property. The buyer, however, rejected title on account of the existence of certain taxes and assessments then liens against the property. The seller thereupon commenced an action to require the buyer to accept the title. In that action it was finally determined that the taxes and assessments constituted incumbrances which justified the action of the buyer.
The Special Term has granted the motion of the defendant Gepo Realty Corp. for summary judgment dismissing the complaint upon the ground that the memorandum agreement between the seller and the brokers contained a provision whereby the brokers agreed to accept $1,250 “ as and for our commissions in connection with the sale, when and if consummated, of hotel property * * * of which Gepo Realty Corp. is now the owner and contemplates making sale to our proposed client.” The memorandum having been executed on the same day as the contract of sale, we assume, without deciding, that the word “ consummated ”' was intended to refer to the passing of title rather than to the execution of the contract of sale. The question remains, however, whether under the terms of such a contract the seller receives immunity from a claim for commissions when the seller is responsible for the failure of the transaction to be “ consummated.” Concededly, an affirmative act on the part of the seller which prevents the closing *267of title would not, under such a stipulation, deprive the broker of commissions. But may the seller contract to deliver title free of such incumbrances and, by failing to discharge them, cause title to be rejected with the loss to the broker of commissions?
No doubt a contract could be devised between the owner and the broker which would protect the seller against claims for brokerage arising under such a state of facts, but we think that in the absence of language unmistakably indicating an intention to deprive the broker of commissions on account of the default of the seller, such a purpose is not to be implied. (Colvin v. Post Mortgage & Land Co., 225 N. Y. 510.) Rather must it be assumed that the parties intended the general rule to apply that “ a party cannot insist upon a condition precedent when its non-performance has been caused by himself.” (Young v. Hunter, 6 N. Y. 203.) The conclusion which we have expressed is. sustained by the weight of authority in this State. (Windsor Investing Corporation v. McLaughlin’s Sons, 130 Misc. 730; affd., 224 App. Div. 715; Sesky v. Jolrane Realty Corporation, 166 Misc. 564; affd., 254 Ápp. Div. 827.)
The decision in Amies v. Wesnofske (255 N. Y. 156) is not controlling here. There it was held that the seller was under no obligation to pursue a recalcitrant purchaser with legal proceedings in order to protect the broker’s commission, for the seller “ makes no contract with his broker to procure from the vendee the performance of a contract of sale.” The general principle, however, was reaffirmed that “ if a promisor himself is the cause of the failure of performance of a condition upon which his own liability depends, he cannot take advantage of the failure.” (Amies v. Wesnofske, supra.)
The order granting the motion of the defendant Gepo Realty Corp. for judgment dismissing the complaint and the order directing that judgment be entered in favor of said defendant, and the judgment entered thereon, should be reversed, with costs, and the motion denied.
Martin, P. J., and Townley, J., concur; Glennon and Dore, JJ., dissent and vote to affirm.