
    Frederick F. Krisch, Respondent, v. Joseph P. Day, Appellant.
    First Department,
    April 4, 1912.
    Principal and agent — contract of employment — oral agreement merged in writing — broker’s action for commissions — failure to effect sale.
    Oral agreements between a real estate broker and Ms principal are merged in a subsequent written contract of employment and are not binding when inconsistent with the writing.
    Where a written contract employing a broker t<> procure purchasers for lands provided that he should be entitled to commissions on sales made to purchasers whom he brought to his principal’s office, or where he was the procuring cause of the sale, and not otherwise, he is not entitled to commissions where he merely talked upon the street to a person who subsequently became a purchaser and gave him literature describing the lands, but with whom he never had any subsequent communication.
    Appeal by the defendant, Joseph P. Day, from a judgment of the Supreme Court .hi favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of November, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of November, 1911, denyingthe defendant’s motion fora new trial made upon the minutes.
    
      H. Schieffelin Sayers, for the appellant.
    
      Walter L. Post, for the respondent.
   Laughlin, J.:

The plaintiff is a real estate broker, and he sues to recover commissions on the sale of vacant lots at Manhattan Beach, pursuant to an agreement by which he was employed by the defendant for that purpose. The agreement was in writing, and, so far as material to the questions presented for review, it provided as follows:

“ The agent shall be paid a commission of -per cent on the net purchase price for sales of houses, and a commission of 5% per cent on the net purchase prices on sales of lots; such commissions to be paid upon sales made to purchasers who shall be brought by the agent to the main office of Joseph B. Day or to his branch office on the property at the time of making the sales deposits, or who shall be the procuring cause of the sale. In either of the above cases the agent shall be entitled to the commission, and not otherwise, and not where another agent has a better claim.”

The agents were also directed by printed instructions, among other things, “to secure name and addresses of all your leads and file them with the main office if you wish to be protected; ” and to bring their customers to the main office on the property to enable the manager to assist after the agent had exhausted his resources, and to make a written report to one of defendant’s offices every night “in order that we may follow up your leads with circulars, maps and etc. Report on your leads at least twice a week, in writing, Tuesday and Friday.”

Commissions are claimed on account of the purchase of certain lots by one Timothy Murray. The plaintiff showed that after having béen thus employed by defendant he was in the latter’s office at Manhattan Beach and saw Murray, whom he did not know, outside and he went out and asked if he could give him any information with respect to the Manhattan Beach property, to which Murray replied that he did not know, but he asked for a booklet, and plaintiff gave him a map, and on being asked his name Murray said that he knew Mr. Day and did not wish to be bothered about purchasing lots, but plaintiff persisted in requesting Murray’s name, stating as a reason that without it he would not be protected in the event of a purchase, and that thereupon Murray gave him his surname and address, but he repeated that he did not wish to be bothered, and that “he didn’t want anybody chasing after him.” The plaintiff' handed in Murray’s surname and the address which he obtained, which, however, was 160 Broadway instead of the correct address, 165 Broadway, and he never had any interview or' communication with Murray thereafter, or did anything further with respect to inducing Murray to purchase the lots. Murray testified that at the time when the plaintiff spoke to him, he was attracted by defendant’s sign and office and that he informed the plaintiff that he was not a customer, but was merely looking for information while he was waiting for his boys, who had been in bathing; that if any literature or other information was mailed to him concerning the lots he did not receive or read it, and that the purchase of the lots by him was due to the fact that some months later he heard another agent of the defendant telephoning with respect to Manhattan Beach lots, and especially recommending their purchase upon the theory that the- prices would soon be advanced, and he thereupon inquired • of that agent about the lots, and the negotiations thus started resulted in the purchase. The plaintiff further testified that prior to the making of the contract in writing he had a conversation with the defendant, in and by which the defendant stated, in substance, that the agent who procured and listed a name first should receive a commission in the event of any subsequent purchase by that party. This conversation, however, preceded the agreement in, writing and was merged therein, and is entirely inconsistent therewith. Under ■ the agreement in writing, which is controlling, it was essential for the plaintiff to show that he brought the customer to the defendant’s office, or that he was the procuring cause of the sale, and the evidence adduced by the plaintiff is wholly insufficient to sustain a recovery upon either theory. •

The plaintiff should have been nonsuited; but we have no alternative but to reverse the judgment and order and grant a new trial, with costs to appellant to abide the event.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

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