
    Samuel Phillips, Appellant, v. John Kraft and Luise Kraft, Respondents.
    Second Department,
    March 31, 1910.
    Principal and agent — broker’s, action for commissions.
    A broker who has procured a purchaser for lands to whom the defendant gave a written receipt for earnest money paid stating all the terms of the sale, but providing for the execution of a formal contract, is entitled to recover his commissions although the sale was not consummated by reason of the fact that the . vendor subsequently insisted that the purchaser pay accumulated taxes in addition to the price agreed upon.
    Appeal by the plaintiff, Samuel Phillips, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendants, dismissing the plaintiff’s complaint.
    
      II. Cook [Nathan April with him on the brief], for the appellant.
    
      Charles 8. Carrington, for the respondents.
   Woodward, J.:

This action is to recover fifty dollars, alleged to have been earned by the plaintiff as a real estate broker in procuring a purchaser .©.f the defendants’ house and lot.

On August 13, 1903, the plaintiff, at the re’quest of the defendants, brought to them a prospective purchaser of the premises in question; and, after the payment of the required deposit, the defendants signed the following receipt:

Aug. 13 / 09.
• “Rec’d of Mr. Jos. Blaustein Fifty dollars deposit on house Ho. 401-14th St. The price is ($4400.) forty-four' hundred dollars. Fifteen hundred ($1500.) Cash, and the seller agrees to take back a second mortgage of six hundred ($600.) for one year and six months, one hundred and fifty ($150) dollars to be paid on signing of contract. Title to be passed on Oct. 14th, 1909. Sign contract on Saturday evening, Aug. 14th, 1909.
“ Signed
“ JOHN KRAFT
“ LUISE KRAFT.”

On the following evening the purchaser and the defendants met to sign the contract. . The defendants then insisted . that the purchaser pay, in addition to the amounts specified in the foregoing receipt, the taxes which would be a charge on the premises at the time fixed for passing title, October 14,1909. The purchaser would not consent to this, but offered to pay all taxes due up to September 1, 1909, if .he could have possession at that time. He'also offered, to take' the premises subject to certain fence encroachments which were not mentioned' in the. writing of August thirteenth. The defendants would not agree to the purchaser’s' proposition in regard to the taxes, and no contract was signed. '

The writing of August thirteenth served to fix the terms of sale and the details of closing the transaction, and contemplated the exe.cution of á formal contract. The plaintiff procured a purchaser able, ready and willing to complete the purchase, upon the terms prescribed by the defendants in the writing of August thirteenth. The defendants thereupon imposed further terms, which amounted to an increase in the price at which they had offered the property to the prospective purchaser. Under these circumstances the plaintiff should not be deprived of the fees that he had earned.

“ If the efforts of the broker are rendered a failure by the fault of the employer,” said Judge Finch in Sibbald v. Bethlehem Iron Co. (83 N. Y. 378, 383); “if capriciously he changes his mind after the purchaser, ready and willing, and consenting to the prescribed terms, is produced ; * * * then the broker does not lose his commissions.”

The plaintiff produced a purchaser who was not only ready and willing to complete the transaction according to the terms prescribed by the defendants, but who was willing to complete the purchase upon terms' more burdensome to him than those contemplated by the writing of August thirteenth. He earned his commissions.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Hirschbbrg, P. J., Jenks, Biter and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  