Walter F. Duckworth, Respondent, v. Carmelia Rogers, Appellant

Walter F. Duckworth, Respondent, v. Carmelia Rogers, Appellant. Second Départment, November, 1905. Broker’s contract to procuré loan on real estate — failure to show performance — error in admission of evidence of former refusal to loan. A broker employed to procure a building loan is not. entitled to recover his com- ' missions on mere proof that he has procured a-person willing and able to make the loan who was: accepted by the principal, if. in fact, the loan was not made. Such contract of brokerage differs from one to effect a sale'of real estate and there is no'performance until the loan is actually made or the lender refuses because of the fault of the principal., ■ - ' The fact that the loanwas not made because of the principal’s failure to folio* the plans and specifications agreed upon, is not established by mere, evidence that the, proposed lender assigned that fact as an excuse for not making the loan, together with evidence that a change was made in the beams:, when such ' facts aré not connected so as. to show that said change was made before the . refusal to loan or affected the action of the proposed lender. . . ' • It is error to admit evidence that a prior application for a loan on the same security was rejected.. Appeal by the defendant, Carmelia Rogers, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of December, 1904. T. P. Pierce, for the appellant. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The respondent has not ventured to defend the judgment which he has recovered. The action is brought to recover commissions alleged to have been earned by the plaintiff, as broker, for the defendant, in procuring a building loan of $6,500.. The allegation of the amended complaint is to the effect that the plaintiff procured an acceptance of the loan by the People’s Safe Deposit and Trust Company of Jersey City, but that the company afterwards refused to make the loan because the defendant did not construct the building upon which the loan was desired in accordance with the plans and specifications which were submitted with the application for. the loan. The evidence does not establish the fact that the loan failed because of the defendant’s failure to follow the plans and specifications. There is some evidence that the company assigned that fact as an excuse fpr not making the loan, and there is also some evidence that a change was made in the beams or joists; but the two facts are not connected in any way, nor is there anything to indicate that the change occurred before the refusal to make the loan, or that it was known to the company, and affected its action in that regard. The plans and specifications were not read in. evidence, and no specific deviations from them were established as operative upon the trust company to induce non-compliance with its agreement to advance the money. Moreover, evidence was received, against the defendant’s objection, that a prior application for a loan on the same security had been rejected. This was clearly improper. The mere agreement by the trust company to make the loan was not sufficient to create a right in the plaintiff to the compensation sought. In Crasto v. White (52 Hun, 473) it was held that a broker employed to procure a loan on real estate was not entitled . tó his commissions on mere proof that he had secured a person able and willing to make the loan, who was accepted by his principal. The contract of brokerage in the matter of a loan differs from one with respect to a sale of real estate, in that it is not regarded as fully performed until the prospective lender, actually makes the. loan or refuses because of the fault or miscarriage of the principal. The cáse cited was followed in this court. in Ashfield v. Case (93 App. Div. 452), where it was held that a broker' employed to procure a .loan was not entitled to recover commissions notwithstanding' he had procured a written acceptance of the application, for the loan from one who was financially able to make it, but who subsequently refused to do so. ' , " The judgment should be reversed. Bartlett, Woodward, Hooker and Miller, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. • >' .