Harry W. Lichtenstein, Respondent, v. David K. Case, as Trustee of Mary Augusta Mott and Others, Defendants, Impleaded with Mary Augusta Mott, Appellant

Harry W. Lichtenstein, Respondent, v. David K. Case, as Trustee of Mary Augusta Mott and Others, Defendants, Impleaded with Mary Augusta Mott, Appellant. Seal estate broker’s commissions forfeited by making a sale at a price less than one offered to him — competency of proof as to efforts made to subpoena a witness. A broker employed to effect a sale oí real estate for §105,000 or more, who procures a purchaser at §105,000, when he might have procured a purchaser at §110,000, is not entitled to recover commissions. The refusal of a judge presiding at a jury trial, to allow the defendant to show that he had spent two days in an unsuccessful endeavor to subpoena as a witness a person connected with the transaction being investigated at the trial, is erroneous. Appeal by the defendant, Mary Augusta Mott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of January, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of January, 1904, denying the said defendant’s motion for a new trial made upon the minutes. Frank G. Wild, for the appellant. I. Henry Harris [Stephen C. Baldwin with him on the brief], for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: We think that there was evidence sufficient to require the submission of the defendant’s good faith to the jury, and that as the learned court withdrew that question from it there must be a new trial. The authority of the plaintiff was to sell the property for $105,000 or more. Mr. Bailey, of the Realty Associates, testifies that Mr. Jonas had offered the property to the associates for $110,000, and that he replied that they would take it provided the terms were satisfactory, as there were questions of title involved that wanted straightening out before they bought it. Mr. Burdick, of the associates, testifies that Mr. Jonas brought him a contract for $110,000, which contained a clause that $5,000 should be paid to Mr. Katz, who was not the owner of the property; that he refused to sign the contract" because it was not with the owners of the property and because the associates would not be “ a party to the $5,000,” but that he did offer to sign a “ straight contract ” for $110,000 for the Porterfield, but Mr. Jonas said it could not be delivered “ without the five thousand dollar item.” There was some evidence tending to show that Mr. Jonas was working for or on behalf of the plaintiff, for the attorney who represented the defendant in the negotiations testifies that the broker told him that Mr. Jonas had peculiar opportunities, and was “ working ” the Realty Associates, and the plaintiff admits that he had relations with Mr. Jonas with reference to this property. There was, then, evidence from which the jury might have found that Mr, Jonas, in behalf of the plaintiff, might have procured a purchaser at $110,000 instead of $105,000. Such a finding would have defeated the plaintiff’s claim for commissions. (Murray v. Beard, 102 N. Y. 505; Knauss v. K. B. Co., 142 id. 70, 75.) It was error for the court to refuse to permit the witness Stearns, called by the defendant, to show that he had been trying for two days to find Mr. Jonas as a witness. (Broum v. Barse, 10 App. Div. 444.) But probably this was substantially, if not entirely, cured by the testimony of the witness, Mr. Wilde, that for two days the defendant had been trying to serve a subpoena on Mr. Jonas. The judgment and order should be reversed and a new trial granted, costs to abide the event. All concurred; Hirschberg, P. J., in result. Judgment and order reversed and new trial granted, costs to abide the event.