
    William P. Sheridan, Appellant, v. Thomas J. McLaughlin, Respondent.
    First Department,
    April 14, 1916.
    Principal and agent — broker — commissions on exchange of property — building encroaching beyond street line — restrictive covenants not shown to be in force or to affect market value do not render title unmarketable — term of mortgage for difference in value of properties not stated not a bar to a recovery for broker’s commissions.
    Where encroachments of a building beyond the street line do not render the title to the premises unmarketable, and may be removed without seriously affecting the building, the owner is liable for the services of the broker employed to effect an exchange of the property.
    Where the deed containing the restrictive covenants was not offered in evidence, nor the nature of the covenants in any manner shown, nor any evidence offered tending to show that they were still in force, or if so that they affected the market value of the property, a refusal to consummate the trade on the ground that the title was unmarketable cannot defeat an action to recover broker’s commission in effecting an exchange of the property.
    Where, in an action to recover broker’s commission, it appeared that defendant on an exchange of property verbally agreed to receive a mortgage for the difference in value between the properties, nothing being said about the term for which the mortgage was to run, a recovery by plaintiff cannot be defeated on the ground that the minds of the parties did not meet.
    Appeal by the plaintiff, William P. Sheridan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 12th day of November, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.
    
      George M. Prest (Henry Siegrist with him on the brief], for the appellant.
    
      Thomas C. Ennever, for the respondent.
   Laughlin, J.:

The plaintiff in his complaint alleges a cause of action on a quantum meruit for services for procuring a purchaser ready, willing and able to pay $1,250,000 for the premises known as The Gframont ” and “ Gframont Annex ” at the northeasterly corner of Broadway and Ninety-eighth street, borough of Manhattan, New York, which were owned by the defendant.

The plaintiff was a real estate broker. Evidence was preented in his behalf tending to show that he was employed by the defendant to procure a purchaser for said premises for the consideration as alleged in the complaint; that he succeeded in interesting one Noakes in the purchase of said premises, and Noakes offered in exchange therefor premises owned by him on West One Hundred and Twenty-seventh street between Biverside Drive and Claremont avenue, known as the “Bordeaux” and “Orescent Court,” and that with the consent of the defendant the negotiations were continued by the plaintiff and between the parties, and that the owners finally agreed verbally upon the basis of an exchange of their respective properties, and that the defendant subsequently refused to execute a contract or to consummate the exchange.

The plaintiff, in an effort to comply with the rule stated by this court in Mutchnick v. Davis (130 App. Div. 417), with respect to the burden of proof on the plaintiff in an action to recover for commissions for services in negotiating an exchange of property, which was more broad than required by the facts, gave further evidence tending to show that Noakes was in peaceable possession of the premises which he offered in exchange for the premises of the defendant under a deed of conveyance, and that he was ready and willing and able to enter into a contract to exchange his premises and to exchange them for the premises of the defendant on the terms on which they had agreed.

The learned counsel for the respondent claims that the title to the property which Noakes offered in exchange, was unmarketable for the reason that there were encroachments from the buildings both upon Biverside Drive and One Hundred and Twenty-seventh street, and that the deed of conveyance to Noakes of one of the parcels was expressly made subject to restrictive covenants in other deeds. At the time the defendant refused to consummate the trade he interposed no objection to Noakes’ title, and he assigned no reason for such refusal excepting, in effect, that he had changed his mind with respect to making the trade.

The encroachments were only shown by a survey which was introduced in evidence. It showed that a coping in front of the Bordeaux on Riverside Drive and One Hundred and Twenty - seventh street extended a little less than five feet beyond the line of the street; that a stoop at the main entrance on Riverside Drive and another on One Hundred and Twenty-seventh street extended about six feet into the street; that the cornice at the roof projected one foot and two inches over Riverside Drive and One Hundred and Twenty-seventh street; that stone at the side of the Riverside Drive entrance projected nine and a half inches and the stone over the entrance projected one foot one and a half inches; that the window sills projected one and a quarter and three and a half inches, and that the metal frames of the windows projected two inches and ornamental stone about the windows projected from three to seven inches; that brick at the side of the entrance on One Hundred and Twenty-seventh street projected eight inches, and that stone over the entrance at that side projected one foot and two inches; that the window sills on that side projected one inch and ornamental stone one and a half inches; that the encroachments with respect to Orescent Court consisted of a coping along Claremont avenue and One Hundred and Twenty-seventh street which extended four feet and nine inches beyond the line of the street; that a stoop on Claremont avenue extended seven inches into the street; that the roof cornice projected four feet; that a fire escape projected three feet; that a stone ledge at the first floor projected eight inches and another at the third floor projected one foot and four inches, and another at the sixth floor projected one foot; that brick and terra cotta ornaments projected from two to eight inches, and that a stone balcony projected two feet over the entrance.

Under the decisions of this court in Acme Realty Co. v. Schinasi (154 App. Div. 397) and in Leerburger v. Watson (75 Misc. Rep. 3; affd. by this court and by the Court of Appeals without opinion, 157 App. Div. 915; 213 N. Y. 662) these encroachments do not render the title of Uoakes unmarketable, for they are not shown to be integral parts of the structure, and presumptively they may be removed without seriously affecting the buildings. Moreover, the encroachments were manifestly visible to the naked eye, and no objection was made to the title on that or any other ground.

The deed of conveyance of the Bordeaux to Noakes contains the recital that it is subject to covenants and restrictions contained in deeds recorded in the Register’s office in Liber 1256 of Conveyances, page 299, Liber 1584 of Conveyances, page468, and Liber 1257 of Conveyances, page 137, and modifications recorded in Liber 107 of section 7 of Conveyances, page 410.” That conveyance was also subject to a party-wall agreement between the former owners of the Bordeaux and Crescent Court, but the trial court correctly ruled that that was merged when the title to the two became vested in Noakes. The deeds containing the restrictive covenants were not offered in evidence nor was the nature of the restrictive covenants in any manner shown, nor was any evidence offered tending to show that the restrictive covenants were still in force, or if so, that they affected the market value.

We are of opinion that there was no presumption that the restrictive covenants to which reference was made in the conveyance to Noakes were in force at the time the defendant refused to consummate the trade, and that there is no presumption that they affected the market value of the premises, or that Noakes’ title was thereby rendered unmarketable. In all of the cases to which our attention has been drawn, in which it was held that the title was unmarketable, the restrictive covenants were shown, and it either appeared thereby that they affected the marketability of the title, or there was evidence showing that they did. (See Wetmore v. Bruce, 118 N. Y. 319; Kountze v. Helmuth, 67 Hun, 343; affd., 140 N.Y. 432; Goodrich v. Pratt, 114 App. Div. 771; Dieterlen v. Miller, Id. 40; Heim v. Schwoerer, 115 id. 295; affd., 187 N. Y. 543; McDougall v. Schneider, 134 App. Div. 208; Scudder v. Watt, 98 id. 228; Conlen v. Rizer, 109 id. 537.)

It was verbally agreed between Noakes and the defendant that the equity of the defendant over that of Noakes was $35,000, and that Noakes was to execute a second mortgage at five per cent on the premises to be conveyed by defendant to him therefor. Nothing was said about the term for which the second mortgage was to run. It is now contended on the part of the respondent that inasmuch as the parties did not agree upon all of the terms of that mortgage, their minds did not meet, and that, therefore, the commissions were not earned by the plaintiff. It was shown that Noakes was ready, willing and able to consummate the trade and to execute a second mortgage. The defendant, having failed to suggest any time for the payment of his equity for security for which the second mortgage was to be given, is not now in a position to insist, for the purpose of preventing a recovery of commissions by the plaintiff, that there was no agreement with respect thereto. It is manifest that he did not anticipate that hioakes would be unwilling to execute a mortgage for any reasonable term which might be requested by him, for he neither required the plaintiff to procure a mortgage for a definite term nor did he make any suggestion with respect thereto before breaking off the negotiations. The evidence shows that the minds of the parties met upon every term and condition proposed by the defendant, and both parties considered that the negotiations had resulted in a definite agreement which they agreed to consummate, and shook hands with respect thereto. In such circumstances the broker employed by the defendant having done all that he was requested to do, earned his commissions, and cannot be deprived thereof by the failure of his employer to consummate the trade. (Tanenbaum v. Boehm, 126 App. Div. 731; 135 id. 286; affd., 202 N. Y. 293; Sibbald v. Bethlehem Iron Co., 83 id. 378; Davidson v. Stocky, 202 id. 423.) The evidence presented by plaintiff, therefore, presented a prima facie case, and the court erred in dismissing the complaint.

It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, P. J., Soott, Page and Davis, JJ., concurred.

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