
    Herman Kahn et al, Plaintiffs, v. Max Verschleiser, Defendant.
    (City Court of New York, Special Term,
    January, 1908.)
    Brokers — Compensation — Actions — Pleading — Complaint — Sufficiency.
    In an action by a broker to recover Ms commissions for effecting an exchange of property, where the contract provided that the' property conveyed by one of the parties was to be subject to a second mortgage, the details of which were to he arranged between the parties, and no allegation appears tliat such details were ever arranged or that the contract ripened into an actual conveyance, the complaint'does not state facts sufficient to constitute a cause of action.
    Demurrer to plaintiffs’ complaint upon the ground that it fails to state facts sufficient to constitute a cause of action.
    Philip J. Knobloch, for plaintiffs.
    Frankenthaler & Sapensky, for defendant.
   Green, J.

This action is brought by reason of and upon the written contract which plaintiff claims the purchaser entered into with the defendant. The defendant demurs upon the ground that the' complaint does not state facts sufficient to constitute a cause of action. "Where an exchange of property is contracted for in order to entitle the broker to commission the contract must be an enforcible- one. In the contract in question, among other provisions relating to the terms of the exchange, is the provision that the premises to be conveyed by one of the parties mentioned in the contract is to be subject to “ a second mortgage of $37,000 for fifteen years, the details of which are to be arranged between the parties,” and no allegation appears that such were ever arranged or that the contract ripened into an actual conveyance. Before the plaintiff can recover he must show that he brought a party as a purchaser who was ready, able and willing to make the purchase, and that the terms were agreed upon between the parties. In view of the provision of the written contract'that the details of the $15,000 second mortgage were to be arranged between the parties, can it be said there was a meeting of the minds or that the terms were agreed upon? The party may have demanded 6 per cent, on the mortgage and the other may have been willing to pay- only 4, or demand may have been made that the mortgage be paid off in .installments, because it must he remembered that it was a fifteen-year mortgage, and the other party may have refused, and in view of this fact it cannot be said that the broker brought a person who was ready, able and willing to make the exchange upon the terms agreed upon, for upon the face of the written contract some of the most important details have not been agreed upon. I am of the opinion that the contract was not an enforcible one, and consequently that the complaint does not state facts sufficient to constitute a cause of action, and the demurrer must be sustained, with costs, with leave to plaintiff to plead anew within six days upon payment of costs.

Demurrer sustained, with costs, with leave to plaintiff to plead anew within six days upon payment of costs.  