
    Wassily I. Owcharoffsky Respondent, v. The Trustees of the Welch Calvinistic Methodist Church, Appellants.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Brokers — action to recover commissions on alleged sale of real estate — must show that broker was procuring cause of sale.
    Where, in a broker’s a.etion to recover commissions upon an alleged sale of real estate, it appeared that nothing resulting from plaintiff’s negotiations with the intending purchaser they were broken off, and that several months after defendants had advertised the property extensively a sale thereof was effected through another broker, plaintiff is not entitled to recover because he did not show that he was the procuring cause of the sale.
    Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, in favor of plaintiff, after a trial by a judge and jury.
    White & Case (Graham Foster, of counsel), for appellants.
    Elias Rosenthal, for respondent.
   Bijur, J.

Plaintiff sues for a commission for effecting the sale of defendants’ church property to another church organization. There is no doubt that plaintiff brought to the attention of the purchaser the property in question, though there is some doubt whether, under the circumstances, it may be held that he was employed by the defendants or their representative. After he had shown the church to a committee of the institution which subsequently purchased the property, plaintiff had an interview with one of defendants ’ representatives. At that time defendants bad reduced its price from $70,000 to $65,000. Plaintiff said that his people had only $3,000 in cash hut would try to get a necessary loan. Plaintiff also testified that he informed defendants’ representative that he had to go away to the country for some time. This was on or about April 15, 1913. He testified further that defendants’ representatives then said: “All right. I want to see the people Wednesday morning, they will sell the church and everything will be all right. You show to me the people. Leave that thing to me and I will settle. * * * For your work you will have your pay as soon as the people have finished the business. Leave it to me, and I will see to it.” Had the negotiations continued and been successfully concluded as a result of or in furtherance of this interview, plaintiff might seriously claim that he had performed all that was required of him and that he was the procuring cause of the sale so far at least as that further services from him had been expressly excused by defendants; but the record shows that nothing further transpired; that at the end of May defendants advertised the church for sale extensively; that thereupon several months later another broker brought the parties together and the sale was consummated for $61,000. Defendants’ testimony to the effect that they paid this other broker the commission was improperly excluded, but that point is not now determinative.

Hnder the circumstances, it seems to me plain that plaintiff cannot recover as broker because he did not show that he was the procuring cause of the transaction. At the time when the alleged conversation with defendants ’ representative took place, the negotiations were in a very embryonic state. The statement alleged by him to have been made by defendants’ representative might have excused plaintiff’s further attention to the negotiations, provided the negotiations had con-tinned and been brought to a successful conclusion even though the terms had been somewhat modified. They were not so continued, but completely interrupted and broken off and the sale ultimately concluded was a new transaction. See Parkhurst v. Tyron, 134 App.. Div. 843; Sampson v. Ottinger, 93 id. 226; Mutchnick v. Davis, 130 id. 417.

Seabury and Page, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  