Richard Keough, Respondent, v. Ahrend F. Meyer and Sophie Meyer, Appellants

Richard Keough, Respondent, v. Ahrend F. Meyer and Sophie Meyer, Appellants. Second Department, June 12, 1908, Principal and agent — broker’s action for commissions — failure to procure purchaser willing to perform. A real estate broker who agrees to find a purchaser for a plot of land with which he is familiar as it stands, for a stated price, is. not entitled to recover commissions whep the person produced by him refuses to take title because the land had a shorter frontage than that stated by the owner. It is immaterial that the owner after employing the broker told the proposed purchaser that the lands had a certain frontage, for that did not alter the brokerage contract. Appeal by the defendants, Ahrend F, Meyer and another, from a judgment of the County Court of the county of Westchester in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of June, 1906, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 16th and 17th days of August,. 1907, respectively, denying the defendants’ motions for a new trial. Frederick B. Van Kleeck, Jr., for the appellants. Thomas F. Curran, for the respondent. [MAJORITY — Gaynor, J.:'] Gaynor, J.:' The motion to direct a verdict for the defendants at the close should have been granted. The plaintiff sues for his commissions in getting a purchaser for the defendants’ land. It was a vacant corner in a village. The plaintiff was familiar with it, passing it and seeing it frequently. ■ -After viewing it with a proposed purchaser he visited the defendants and asked them to permit him to get a purchaser for it, to which they assented, giving $25,000 as the price. » He claims that they ttid him the frontage was 168 feet on Central avenue and 110 feet on the other street. He after-wards brought the proposed purchaser to them,. and after-some negotiation the defendants signed a paper acknowledging the receipt of $100 from the proposed purchaser on account, and agreeing to sell him the plot for $25,000. .Its dimensions were not given. The proposed purchaser did not sign any contract. The next day the parties met to make a formal contract, but the purchaser would-not sign it because the' frontage on Central avenue was only 165 .feet, and the sale fell through. It is plain that no purchaser was procured by the plaintiff ready to make a contract of purchase. If it be true that the defendants told him the frontage on Central avenue was 168 feet, that did not' enter into the contract of employment. It was to get a purchaser for the plot just as it was. And if the defendants afterwards told the proposed purchaser during the negotiation that the frontage was 168 feet, that did not change the contract of brokerage (Diamond & Co. v. Hartley, 38 App. Div. 87; 47 id. 1; Hausman v. Herdtfelder, 81 id. 46). The'judgment should be reversed. Woodward, Jenks, Hooker and Miller, JJ., concurred. Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event.