
    Goldye Miller, Appellant, v. Alfred Rossiter and Bankers’ Trust Company, Respondent.
    Supreme Court, Appellate Term, First Department,
    May 7, 1925.
    Brokers — real estate brokers — commission is due when contract of sale is executed — -agreement by broker to wait until closing is without consideration.
    Brokerage commission on a sale of real property is due when the contract of sale is executed and the broker is entitled to recover his commission notwithstanding that after the execution of the contract he agreed to wait for the payment of Ms commission “ when, as and- if title closes,” and notwithstanding the fact that the contract of sale was mutually rescinded, for the subsequent agreement was without consideration.
    Appeal from a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fourth District, dismissing the complaint at the close of plaintiff’s case.
    
      
      McLaughlin & Stern [Martin Lippman of counsel], for the. appellant.
    
      White & Case [Chester Bordeau of counsel], for the respondent.
   Per Curiam:

The action was for brokerage commission earned in procuring a purchaser ready, willing and able to buy on defendant’s terms. A contract of sale was entered into. Immediately thereafter the broker made an agreement to wait for the payment of his commission when, as and if title closes.” Objections were made to the title and by mutual agreement the contract was rescinded; the money paid on account returned to the purchaser and the defendants paid the expenses incurred by the purchaser.

The brokerage commission, in this case, was earned when the contract was entered into. The agreement made by the broker was without consideration and unenforcible. (Reis Co. v. Zimmerli, 224 N. Y. 351.)

Judgment reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Guy, Wasservogel and Glennon, JJ.  