Okun v. Department of State 285 A.D. 993

Determination annulled and the Secretary of State directed to restore petitioners’ real estate broker’s licenses, without costs. Memorandum: Petitioners’ real estate broker’s licenses have been revoked on a finding that each are “ guilty of fraudulent practices and have demonstrated untrustworthiness to act as real estate brokers”. The facts are not in dispute. Petitioners refused to return a deposit made by prospective purchasers of premises without releases from the prospective sellers when the deal fell through. On this record we agree with the director that, as a matter of law, the petitioners were required to return the deposit to the prospective purchasers, as the conditions in reference to the term of the mortgage to be secured were so indefinite and uncertain in the “Purchase Offer” as not to constitute an enforcible contract. However, it appears that, pursuant to the advice of counsel, petitioners took the position that they were merely stakeholders and as such requested releases from both parties seeking the deposit. We doubt if this advice was predicated on a knowledge of all the facts, but as ‘ counsel was not sworn, we can only take what appears in the record. We reach *994the conclusion that the record fails to sustain a finding that petitioners are guilty of “ fraudulent practices ” or “ have demonstrated untrustworthiness to act as real estate brokers ”. All concur. (Proceeding to review the action of the Secretary of State in revoking petitioners’ real estate broker’s licenses, which proceeding was transferred to the Appellate Division for determination by order of Onondaga Special Term.) Present — McCurn, P. J., Vaughan, Piper, Wheeler and Van Duser, JJ.