
    Carl E. Randrup, Respondent, v. Henrietta Schroeder, Appellant.
    (Supreme Court, Appellate Term,
    July, 1897.)
    1. ¡Real estate broker — Procuring cause cf sale.
    "A real estate broker must, in order to recover commissions, be the procuring cause of the sale, and the fact that, after he had failed to sell either of two houses which were to be sold before the residence of the owner, the latter, four months subsequently and without any further intervention by the broker, sold his residence, by exchange,to the same purchaser, the title being taken in the name of another, does not entitle the broker to commissions.
    2. Same — Praud — Admissions.
    Testimony of the record purchaser thajt the real purchaser had told him that the title was to be taken in the : to defraud the broker, who had been acting for both sides, while tending to.show án admission by the real purchaser that the broker was entitled to commissions, does not prove any : the part of the vendor. admission to that effect upon
    'Appeal from judgment rendered by Judicial District Court in favor of the p’ the justice of the Tenth aintiff.
    Samuel Fleischman, for appellant.
    Ira G. Darrin, for respondent.
   Bischoff, J.

The claim in suit was for the amount of agreed compensation alleged to be due to the plaintiff because of his successful efforts, as a real estate broker, in bringing about an exchange of the defendant’s property, Ho. 1982 Bathgate avenue in this city, for certain lots owned by one "Wittiger in the city of Yonkers, but there appears to have been no sufficient evidence that this broker was the procuring cause of the exchange-and the judgment is, therefore, infirm' and cannot bé sustained.

The defendant owned three adjoining houses on Bathgate avenue, known by the street numbers 1982, 1984 and 1986, all similar in plan, the first named being occupied by her and her husband' as their residence, and it was testified by the plaintiff that he had been employed to find a purchaser of these houses, but that 1982, the residence, was to be sold last.

He procured Wittiger as a party able and willing to purchase one house by giving the Yonkers lots, of a stated valuation, in exchange and by mailing an appropriate cash payment of the balance in favor of defendant to complete the purchase price. These negotiations were had with reference to Ho. 1986, but, when the parties met to execute the contract of sale, it transpired that Wittiger was unable to complete the matter, or else unwilling, and the transaction fell through with the result that Ho. 1986 was later sold to some ether person.

Some four or five months after this, however, the defendant did exchange the house Ho. 1982 for these Yonkers lots, the title not being taken by Wittiger in his own name but by one Wetterer, who held a mortgage upon the lots, and while the plaintiff had made no move in this transaction, he laid claim to compensation, as broker, because Wittiger had been originally introduced by him to the defendant at a time when the three houses were in his hands for sale.

This, however, was not enough since, although it may be conceded that Wittiger would not have Concluded the exchange for Ho. 1982 had his attention not been called originally to the three houses by the plaintiff, Ho. 1982 was not for sale at the time of the introduction, because of the fact that Ho. 1986 was then unsold and its sale was to precede the sale of Ho. 1982, according to the plaintiff’s own testimony as to his instructions from the defendant.

•As has been said the negotiations commenced with Wittiger through the plaintiff’s instrumentality, with reference to Ho. 1986, came to nothing and no more was done by . the plaintiff in the matter; thus it cannot be held that he procured the sale of the house Ro. 1982, when it finally cane into the market, merely because Wittiger was interested in the purchase, for even if it be said that the broker’s influencé, endured until-the date of the sale, that influence, when exerted, was not extended to this particular4 property in compliance with any request upon the defendant’s part, or in the course of the broker’s employment at that time.

Under these circumstances it seems obvious that the plaintiff was not the procuring cause of the sale in question under the rules applicable to this class of cases.

In support of- his claim the-plaintiff called Wetterer, the purchaser of record, as \a'witness, who testified that Wittiger had told him that the title was to be taken in his name iti order that both parties to the transaction might defraud the broker of his commissions..-

It appears that the plaintiff was understood to be acting for both sides in. the matter of the attempted sale- of Ro. 1986,’ but while this evidence of Wetterer’s might have supported a finding-of an admission upon Wittiger’s part that the broker was entitled te' commissions through the sale of Ro-. 1982, it did not serve as evidence of this defendant’s admission of the fact, and otherwise^ as - shown, the proof was insufficient to cha arge the latter,

The judgment is open to the further proof of damages, since while the action was for an alleged agreed compensation of $100 upon the sale Lf the house Ro. 1982, 'the plaintiff failed to testify to any such -agreement, and the only evidence upon the subject (that of the defendant) was to- the effect that this sum was promised solely with reference to Ros. 1984 and 1986. objection that there was ne

There is also a serious question whether the plaintiff acted in good faith as the agent of the defendant in the course of his dealings with Wittiger. A letter, sent by him to the latter, was in evidence whereby it appeared that he was aware of Wittiger’s over-valuation of his Yonkers lots and in which he stalled that he would not inform the defendant of the facts.

This letter was not satisfactorily explained and may be taken as strongly affecting the right of recovery in this action.

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

cur. Daly, P. J., and MoAdam, J., cone

• Judgment reversed and new trial ordered, with costs to appellant to abide the event.  