
    John J. McNamara, Doing Business as McNamara Realty, Appellant, v. Anthony M. Viscio et al., Respondents.
    County Court, Schenectady County,
    May 8, 1958.
    
      
      Henry J. Horstman for appellant.
    
      Nicholas J. Grasso for respondents.
   Archibald C. Wemple, J.

This action was brought by the plaintiff for commissions allegedly becoming due under a purchase offer obtained by the plaintiff broker but never accepted by the defendant owners. The defendant owners had listed the property with the plaintiff broker for sale at a price of $17,900 and the plaintiff produced a purchaser ready, willing and able to purchase for the price stated.

This appeal was submitted on the record, without argument. The record is clear in showing that the listing contract identified as Schedule A, attached to the complaint, provided that possession be “ arranged.” The record further clearly shows that the proposed offer, attached to the complaint and identified as Schedule B, provided, under paragraph 14, that “ physical possession of the premises shall be delivered on day of closing,” and in the next preceding paragraph there is a provision that closing is to be “ on or before the 1st day of May, 1957.” In the purchase offer referred to as Schedule B, and in a previous purchase offer, both rejected by the defendants, it is quite apparent that the defendant owners were not content with the possession date provisions thereof.

The rule of law in New York State governing the right of a real estate broker to commissions on a sale of property requires the broker to produce a buyer willing and able to purchase on the seller’s terms. The matter of possession was deferred to future decision. It was left open in the listing contract by the use of the expression " arranged.” Thus negotiations were anticipated to fix this item of the contract of sale.

The transfer of possession of real property is an important element in determining whether or not an owner wishes to sell to a prospective purchaser. Date of possession may mean the difference between renting temporary shelter, purchasing other property, storage of household goods and other items of significance in arriving at a decision whether to sell or not to sell. In this case, there appears never to have been a meeting of minds on this subject. It was to be arranged,” but such arrangement as to possession was never brought into the contract by agreement between the negotiating parties. Therefore, the plaintiff’s commission was not earned because he did not produce a purchaser ready, willing and able to purchase on terms agreeable to the seller owners.

The judgment and order of the City Court referred to is hereby affirmed.

Submit order.  