Sanders A. Kahn Associates, Inc. v. Maidman

Kupferman, J. (dissenting).

I concur in the dissenting opinion of Justice McGivern. However, in view of my joining in the majority opinion in Carnegie v. Abrams (37 A D 2d 327) (in which Justice McGivern dissented), I believe a further explanation is warranted. The real estate agency relationship between the broker plaintiff and the seller defendant in both the Carnegie case and this one was similar. However, my point of departure is that in the Carnegie case the difference between the buyer and seller was only with respect to the amount of interest on the mortgage and the amortization, where the seller had told the agent previously that it should he “the going rate”, and where the buyer was amenable but was unable to ascertain what terms the seller desired. Here, the buyer’s attorney on receipt of a contract prepared by the seller stated “ There are, of course, a number of provisions which raise serious questions and I must discuss them with our client.” There is only speculation as to what these serious questions were, being possibly an existing tenancy and whether interest was included in or in addition to the principal payments on the existing mortgage. The defendant seller maintained that the contract was “subject to immediate acceptance” and called off the deal, while the attorney for the buyer asked for a meeting with seller’s counsel “ to discuss with you personally several other clauses in the contract.” While the buyer was “ able ”, it was not “ ready and willing ” on the contract submitted or on known easily solved differences. Accordingly, the broker’s cause must fail.