HOULIHAN PARNES REALTORS v. GAZIVODA

In an action to recover damages for breach of a brokerage agreement, defendant appeals from (1) a judgment of the Supreme Court, Westchester County (Beisheim, J.), entered March 25, 1983, which, after a jury trial, was in favor of plaintiff in the sum of $115,967.75 and (2) an order of the same court, dated April 12, 1983, which, inter alia, denied defendant's motion to set aside the jury verdict. ¶ Judgment reversed, on the law, without costs or disbursements, and complaint dismissed. ¶ Appeal from the order dismissed, without costs or disbursements, in light of our determination on the appeal from the judgment. ¶ Plaintiff broker failed to establish (1) that defendant seller agreed to employ plaintiff on a commission basis and (2) that plaintiff had procured a ready, willing and able purchaser at a price and on terms agreeable to defendant. In these circumstances, plaintiff is not entitled to recover a commission ( Hecht v Meller, 23 N.Y.2d 301; Lane — Real Estate Dept. Store v Lawlet Corp., 28 N.Y.2d 36). O'Connor, J.P., Brown, Boyers and Eiber, JJ., concur.