Dakin v. Grossman

¶1In an action to recover a brokerage commission, the defendants appeal from: (1) a judgment of the Supreme Court, Westchester County, entered February 18, 1976, which is in favor of the plaintiff-respondent and against them, after a nonjury trial; and (2) an order of the same court, dated February 11, 1976, which, inter alia,.denied their motion for (a) reargument of a prior decision and (b) a new trial. Judgment reversed, on the facts, and complaint dismissed. Appeal from the order dismissed: (a) on the ground that no appeal lies from the denial of a motion for reargument of a decision; and (b) as academic in the light of the disposition of the appeal from the judgment. Plaintiff is awarded one bill of costs to cover both appeals. No meeting of the minds of the parties with respect to all the essential contract terms was ever reached and hence plaintiff is not entitled to a brokerage commission (see Kaelin v Warner, 27 NY2d 352; Arnold v Schmeidler, 144 App Div 420; House v Hornburg, 267 App Div 557). The trial court erroneously concluded that the owner had intended for this to be an all cash transaction and that he acted in bad faith in declining the sale. The record, however, supports a contrary finding. Accordingly, the agreement failed for want of an essential term, viz., the manner of payment. Martuscello, J. P., Cohalan, Damiani and Titone, JJ., concur.