
    Ignatz Martin, Respondent, v. Leverett F. Crumb, Appellant.
    Second Department,
    July 25, 1913.
    Principal and agent — action by real estate broker for commissions — failure to establish performance.
    Where, in an action by a real estate broker to recover commissions, it appears that he was only authorized by the defendant, an attorney at law, acting as agent for the owners, to find a purchaser for the whole of a certain lot, and that he did not procure such purchaser, but did procure one for a portion of the lot, a judgment for the plaintiff should be reversed and the complaint dismissed.
    Appeal by the defendant, Leverett F. Crumb, 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 11th day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial.
    
      Nathan P. Bushnell [ Jacob Brenner and Robert McCord with him on the brief], for the appellant.
    
      Robert H. Wilson, for the respondent.
   Putnam, J.:

The verdict, and judgment thereon, rest on the propositions:

1. That defendant had employed plaintiff as a broker to get a buyer who would pay $6,500 an acre.
2. That before any revocation, the plaintiff at Peekskill did procure Mr. Henry Eoth as such a buyer, thereby earning commissions.

Plaintiff from the beginning had an eye upon a smaller tract of fifteen acres on Elm avenue, Ridgewood (letter July fourteenth). On this he asked a week’s option (letter July eighteenth). Mr.' Crumb replied, saying: “After consultation, the parties owning the entire strip to Fresh Pond Road have agreed that they will sell for $6,500 per acre.”

Plaintiff clearly understood that this offer exceeded the territory that he wanted. He urged that this price on “ the whole strip” would be a good deal more than leaving the upper portion out. Yet he continued to write and negotiate about the lower fifteen acres, as is shown by his letter of July twenty-first. Mr. Crumb made no answer. He, however, on August ninth, reminded plaintiff that $6,500 per acre was the price fixed by the heirs. The situation remained unchanged, when plaintiff’s letter of September twenty-fifth offered $6,000 per acre for fifteen acres, one-third cash and balance on bond and mortgage. This brings us up to the situation at the meeting at Peekskill. Mr. Roth there offered $6,500 per acre for these fifteen acres. Mr. Crumb stated that he would have to see his clients, but that he would sign contract for $100,000.

Assuming everything within the jury’s province as found in the plaintiff’s favor, still the difficulty remains that the only positive authorization by defendant was to find a purchaser for the whole lot up to Fresh Pond road, and such a purchaser the plaintiff did not produce.

As plaintiff is asserting a liability against an agent, an attorney at law — so known and dealt with — consisting of a breach of his warranty of authority to contract for the heirs in interest; the defendant is entitled to stand strictly on the terms of the letters. The construction of them is for the court. They did not show an employment to sell, or a representation of the authority to find a purchaser for fifteen acres only, which was all that Mr. Roth was willing to buy.

It follows that the judgment and order should be reversed, with costs, and judgment rendered dismissing the complaint, with costs.

Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Judgment and order reversed, with costs, and judgment rem dered dismissing the complaint, with costs.  