
    Patrick O’Toole, Respondent, v. Robert Tucker, Appellant.
    (Supreme Court, Appellate Term,
    July, 1896.)
    Brokers — Commissions — Modification of terms by principal.
    Where .the broker has performed by procuring a purchaser and there is no intervening agency, he cannot be deprived .of his right to commissions by a mere delay in closing the purchase, nor by the fact that his principal modified his terms as to the amount of cash payment required.
    Appeal — Weight of evidence.
    On appeal from the City Court,. the Appellate Term cannot review the evidence or consider the question of credibility of witnesses.
    Appeal by defendant from affirmance by the City Court, General Term, of a judgment in favor of plaintiff.
    Martin & Weil, for appellant.
    Weed, Henry & Myers, for respondent.
   " MoAdam, J.

The: action is for brokerage on procuring á purchaser for a liquor store belonging to the defendant, situated in Thirty-third street, Hew York city.

There is no dispute as to the employment of the plaintiff, that he introduced Mr,. Reedy; to the defendant as the proposed purchaser, and that the defendant finally consummated á sale to Reedy for $8,000. The defense is that, though Reedy bought at 'the price named, he did not buy according to the terms on which the plaintiff was employed to sell, because they had to be modified by the defendant to suit' the financial condition of Reedy as to ready cash. -

The plaintiff demanded hi's brokerage after the sale, and the defendant, according to his own evidence, said, “ If you had sold the place upon the terms I gave you, namely, $3,000 cash, I would have made it right with-you.”

The plaintiff testified that he took Reedy to the defendant, introduced him, and -left the two to make their own terms; and that the defendant said “ he would do the rest himself if I brought him' a buyer.” When Reedy said he could not comply with the terms originally announced by the defendant the latter did not let the matter drop, but went on, got his original price, making the terms as to ready money so that the purchaser could comply with them, and in this .manner the sale went through. In other words, the defendant did just as he told the plaintiff he would do— after the plaintiff brought him the buyer he did the. rest himself.

The plaintiff having brought the parties together, and there being no intervening agency, the delay in closing the purchase does not. deprive him of his brokerage (Morgan v. Mason, 4 E. D. Smith, 636); nor did the fact that the defendant subsequently modified his terms.as to the mode of payment effect such a result. Gold v. Serrell, 6 Misc. Rep. 124; Atwater v. Wilson, 13 id. 117; Levy v. Coogan, 9 N. Y. Supp. 534; Dailey v. Young, 13 id. 435. Indeed, the change put the parties in the same position in respect to the subject of the contract as if the defendant had in the first instance employed the plaintiff to sell on the terms he took himself. Dailey v. Young, supra.

There was evidently no revocation of the plaintiff’s authority, for the defendant’s refusal to pay was based on the sole ground that the plaintiff had not sold to Reedy on the terms of the original employment.

The plaintiff testifies that when he demanded his brokerage the defendant said, Tiffs thing did not pan out as I expected it would; I didn’t get the amount of cash I expected ” ;• plaintiff then said, But you sold the, place for $8,000”; to which the defendant replied, “ Yes, but he had but little cash”; and defendant then said, “ he would give me some compensation.”

The acts and sayings of the parties are totally inconsistent with the proposition urged by the defendant on the argument that the plaintiff’s authority had been revoked, or that he or the purchaser had prior to the sale abandoned further efforts to consummate the same. It cannot therefore be seriously contended that there was an entire absence of evidence to support the facts upon which the plaintiff depended to sustain his action; on the contrary, there was ample to require the submission of the issues to the jury.

We cannot review the weight of evidence or consider the question of credibility of witnesses, as the affirmance by the General Term is conclusive upon those subjects. Gold v. Serrell, supra; Arnstein v. Haulenbeek, 16 Daly, 382; Smith v. Pryor, id. 169; Rowe v. Comley, 11 id. 318; Gundlin v. Packet Co., 8 Misc. Rep. 291.

The rulings of the court on four of the defendant’s requests to’charge have been'criticised; but as applied to the facts, of the case there is no merit in the exceptions taken thereto.. ,

. The jury rendered a-verdict, in favor of the plaintiff for $250, a sum less than the plaintiff was entitled to receive under his contract of employment. But as the plaintiff has not appealed the defendant cannot complain that the jury did not give' á verdict against 'him sufficiently. large. The- Court of Common Pleas in Rowe v. Comley,- supra, said'in regard to such a finding, “If the General-Term of the Marine ” (now City) “ Court had seen fit to set aside the verdict Upon the ground that it was the result of a. compromise, they would have had the power so to do in the exercise of their discretion; but this court can only consider u,pon appeal the exceptions taken during the trial.”

The judgment must be affirmed, with costs.

Daly, P. J., and Bisóhofe, J., concur. ' .

Judgment affirmed,- with 'costs.  