
    William Seidman and Michael Levy, Appellants, v. Henrietta Rauner, Respondent.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Brokers — Compensation: Eight to compensation — Failure to consummate bargain — Principal refusing to complete; Actions — Evidence — Admissibility.
    In an action by brokers to recover their commissions for effecting the sale of real estate, where It appears that plaintiffs were employed by the owner to sell the property and, after conducting negotiations, produced a party whom the owner accepted as a purchaser, upon terms agreed upon, and who made the agreed deposit and to whom the owner gave a written memorandum or option, which was not an enforceable contract but provided for the execution of such a contract on a future day, it is error to exclude proof of willingness of the purchaser and the refusal of the defendant to execute a formal contract in conformity with the memorandum.
    In such a case it is not an answer to plaintiffs’ claim for commissions that the refusal of the defendant to execute the contract was due to the fact that the mortgages upon the property did not in fact run as long as was stipulated in the memorandum.
    Appeal by the plaintiffs from a judgment of the City Court of the city of Mew York, rendered in favor of the defendant, dismissing the complaint.
    Aaronstamm & Chorosh (William H. Chorosh, of counsel), for appellants.
    Adolph J. Kohn (Clarence M. Lewis, of counsel), for' respondent.
   I/Evehtbitt, J.

The plaintiffs sue to recover broker’s commissions for effecting the sale of real estate. The trial resulted in a dismissal of the complaint. There was concededly proof of employment. The dismissal rested solely on the ground that the plaintiffs.failed to prove performance — that is, the production by them of a party ready, willing, and able to purchase the defendant’s property. After negotiations which had been conducted by the plaintiffs, the defendant, on December 7, 1905, agreed upon the terms of sale with one Kurzman, accepted him as a purchaser, received 1 the agreed deposit- and signed and delivered to him the following preliminary memorandum:

“Hew York, December 7th, 1905.

“Mrs. Henrietta Rauher sells to Mr. J. Kurzman house 231 West 121st Street, twelve rooms and bath on floor, lot twenty-five by one hundred; selling price $29,800 on which Mr. Kurzman lets $25.00 deposit. There is at present first mortgage $20,000.00 running until 1907, August, second mortgage $4,500.00 to run until August, 1907. Contract to take place at Adolph J. Kohn December 11th, at 4 p. m., 198 Broadway. $725.00 to be paid on contract. Brokers in said transactions are William Seidman and Michael Levy.

“ Henrietta Rauner.”

Kurzman and his attorney, as also the parties to the action, attended at the appointed time and place for the purpose of executing a formal contract, which, however, was not exe- . euted.

The plaintiffs attempted to prove by their own testimony and that of Kurzman what transpired on that occasion, but their efforts were unsuccessful, owing to the rulings of the court; they did succeed, however, in introducing the testimony of Kurzman’s attorney on that subject.

The memorandum quoted was nothing more than an option, certainly not an enforceable contract. If the plaintiffs had claimed that, upon the execution and delivery of that memorandum, they earned their commissions and had tried the case on that theory, they could not have succeeded and a dismissal would have been proper. Benedict v. Pincus, 109 App. Div. 20; Ward v. Zborowski, 31 Misc. Rep. 66. But if, in addition to an agreement fixing the terms of purchase, they rested their right of recovery upon the willingness of Kurzman and the refusal of the defendant to execute a formal contract on December eleventh,. upon proof thereof they would have been secure against dismissal. Friend v. Jetter 18 Misc. Rep. 368; affd., 19 id. 101. If the customer is ready and willing at a specified time and place to enter into an enforceable contract embodying the terms agreed upon, assuming that he is able to carry it out, the principal cannot defeat a broker’s claim to commissions by refusing to join in the execution.

The plaintiffs contend and attempted to prove that this was just what occurred in this case. Upon the examination of each of the plaintiffs and of Kurzman, a number of questions were asked calling directly for the occurrences of the meeting of December eleventh, with the obvious purpose of showing that the nonexecution of the contract was due solely to the refusal of the defendant. Upon objection that testimony was excluded. This was error.

notwithstanding that exclusion, the facts proven were sufficient to carry the case to the jury. Kurzman’s attorney was allowed to and did testify that, on the occasion in question, Kurzman expressed his willingness to execute a contract pursuant to the terms of the preliminary memorandum, but that the- defendant would not sign such a contract because the mortgage did not run as long as was stipulated in the memorandum. '

If the defendant had not misrepresented the terms of the mortgage, the contract would have been executed. Through her misrepresentations the transaction was defeated. By the dismissal of the complaint, therefore, the plaintiffs are made to suffer the consequences of the deféndant’s misrepresentations. The motion to dismiss should have been denied.

The record discloses other erroneous rulings, notably the exclusion of evidence bearing upon the ability of the purchaser to complete the transaction.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Gildebsleeve and MgGall, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.'  