Don Leipham, Inc., et al., Respondents, v. A. Phil Grosodonia, Appellant, 21 A.D.2d 847

Judgment unanimously reversed on the law and facts, with costs, and judgment directed in favor of defendant dismissing the complaint on the merits, with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: Defendant appeals from a judgment in favor of plaintiffs (real estate brokers) based upon the following provisions of a written agreement: “ Commission due selling brokers concerning Auburn Plaza * * * $4,000. Deposit with offer $4000 to be held in escrow until execution of deal ”.

Oh February 2 and 10, 1961 plaintiffs submitted to the representative of the owner of the plaza written purchase offers signed by defendant. Both offers were rejected and no further offers were submitted by plaintiffs on behalf of defendant. On February 24, 1961 defendant delivered to plaintiffs a copy of a letter then mailed by him to the owner’s representative in which he had written “I am, therefore, terminating our negotiations for the Auburn Plaza”. Defendant then informed plaintiffs in writing “should I decide to negotiate once more for Auburn Plaza our agreement still holds”.

Between February 24 and 27, 1961 defendant did negotiate once more by making an effort to purchase the property directly from the owner. On February 27, 1961 the owner’s representative by letter addressed to defendant in care of plaintiffs notified defendant that his offer was not acceptable. Plaintiffs then returned to defendant his $4,000 check which had been deposited by him with plaintiffs in escrow.

Defendant had no further conversations or dealings with either of the plaintiffs and in October, 1961 he contracted for purchase of the property on terms more favorable to him than were specified in the purchase offers submitted by plaintiffs on his behalf.

We find that the contract sued upon was terminated by the parties when the property owner finally rejected defendant’s offers on February 27, 1961 and plaintiffs returned to defendant the $4,000 check which plaintiffs were holding in escrow under the terms of the contract. (Appeal from judgment of Monroe Trial Term in favor of plaintiffs in an action for work, labor and services.) Present — Williams, P. J., Bastow, Henry, Noonan and Del Vecehio, JJ.