
    John Bogart, Respondent, v. Benjamin Reich and Samuel Brand, Appellants.
    Second Department,
    November 27, 1908.
    Bailment.;—deposit to meet brokerage commissions-^- recovery thereof from depositary.
    One under contract to convey lands, who deposits a sum of money with the vendee’s attorney with an understanding that if is to be turned over to the brokers who negotiated the contract when the title passes, may recover said money from the depositary if the sale is not consummated, irrespective of the brokers’ legal right to commissions. ,
    
      Appeal by the defendants, Benjamin Reich and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 29th day of May, 1908.
    
      Reich & Brand, for the appellants.
    
      Bogart & Bogart, for the respondent.
   Woodward, J.:

Samuel Lando entered into a contract with John Bogart, the plaintiff in this action, for the purchase of certain property in the borough of Brooklyn. One Lando, a brother of the purchaser, and a Mr. Weiss, at the time of making this contract, demanded brokerage fees, which the sel er at first refused to pay, but it was subsequently agreed that he would deposit the sum of seventy-five dollars with the defendants, who were the attorneys of the purchaser, which sum was to be turned over to the brokers upon the order. of the plaintiff upon title passing. The title did not pass, and the plaintiff demanded the return of his deposit, which the defendants refused, claiming that they were bound to hold the same for the brokers, who had earned the commission. The plaintiff brings this action to recover the fund, and has been awarded judgment, the defendants appealing.' An effort to interplead the brokers failed, no appeal being taken from the order.

We are unable to discover that the defendants have any right to hold on to this fund. They are under no legal obligations to the brokers; it was not left to them to determine when the fund should be paid over; it was to be delivered to the brokers on the passing of title, and upon the order of the plaintiff. The purchaser having failed to take title, and the plaintiff having refused to give the order for the- payment of the fund, the defendants can be under no obligations to the brokers. It is not material that the brokers may be entitled to their commissions from the plaintiff; that is a question between them, with which the defendants have no concern. The plaintiff never surrendered control of the fund; he made it subject to his order; and while the memorandum between the plaintiff and defendants called it an escrow, it did not have that character. There was merely a deposit subject to the order of the depositor, and the plaintiff having taken upon himself the responsibility of refusing to deliver the same to the brokers, the defendants had no right to retain the same.

The judgment of the Municipal Court should be affirmed, with costs.

Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  