
    Martin L. O’Hara, Respondent, v. Bronx Consumers Ice Company, Appellant.
   Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. In this action to recover a real estate broker’s commission, it appears that the proposed purchasers desired to use the property to erect a public garage. Before the contract was delivered, the purchasers ascertained that there was a restrictive covenant of record against “ any noxious, offensive or dangerous trade or business.” Such a covenant does not prevent the erection and maintenance of a public garage. (Goldstein v. Rosenberg, 191 App. Div. 492; affd., 232 N. Y. 535.) The purchasers, therefore, were not justified in refusing to execute and deliver the contract, and it follows that respondent failed to produce a buyer ready and willing to purchase, and he is, therefore, not entitled to a commission. Lazansky, P. J., Rich, Young and Seudder, JJ., concur; Hagarty, J., dissents, with the following memorandum: I dissent and vote to affirm. At the outset of the negotiations, the plaintiff was informed by the defendant that there were no “ so-called private restrictions ” upon the property. Upon this basis the plaintiff produced a customer ready, willing and able to purchase. It developed, however, that the property was subject to a restrictive covenant against nuisances, as the result of which the proposed purchaser refused to enter into a contract. I think the plaintiff earned his commission.  