
    Frank B. Wilson, Appellant, v. Mary Ewald, as Executrix of the Last Will and Testament of Andrew Ewald, Deceased, Respondent.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Principal and agent — Eights and liabilities of agent as to third person— In general — Unauthorized contracts — Eelease of liability,
    Where, in an action by a broker against the owners of real estate for loss of commissions upon a proposed sale which the owners refused to consummate, it appeared that the person who placed the property in plaintiff’s hands for sale and for which he found a purchaser did not have authority to sell and the action is discontinued upon the payment of a certain sum and the execution of a general release by plaintiff, such action is not a bar to a subsequent suit by the broker against the alleged agent for loss of .commissions based upon breach of warranty of authority.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York in favor of the defendant for seventy dollars and eighty-three cents, and from an order denying the motion for a new trial.
    Joline, Larkin & Rathbone (Lewis H. Freedman and Albert Stickney, Jr., of counsel), for appellant.
    Edward P. Orrell (Edward W. S. Johnston, of counsel), for respondent.
   Ford, J.

Plaintiff-appellant, who was a real estate broker, showed upon the trial that the testator of defendant-respondent placed in plaintiff’s hands for sale certain real estate for which he found a purchaser ready, able and willing to purchase at the price named by said testator, but that the latter proved not to he the owner, and did not even possess authority as agent to sell the property. Suit based upon the testator’s breach of warranty of authority to sell was commenced against him for damages incurred through loss of commission upon the proposed sale. Before the commencement of this suit, the plaintiff had commenced one for similar damages against the owners of the property based on their refusal to consummate the sale, during the course of which it appeared that defendant’s testator did not have authority to sell the property. That suit was discontinued upon payment of sixty-five dollars to the plaintiff and a release of the owners by the plaintiff. Then this action was commenced. At the close of plaintiff’s case, the complaint was dismissed upon the following ground as stated by the learned trial judge:

I hold that plaintiff is precluded from prosecuting this action by reason of the .settlement made by him in his Supreme Court action against Andrew Ewald and Katherine Ewald. Assuming the legality of that litigation, nevertheless it stands uncontradicted therein that that suit was instituted after plaintiff had full knowledge that defendant’s testator had never been authorized to make sale of the property in question. Having elected, therefore, to hold the alleged principals, and having effected settlement of suit instituted against them on that theory, plaintiff is now es-topped from charging the alleged agent. He had his right of election as to which he would hold responsible, and having made an election is bound thereby. The complaint is dismissed.”

In the former suit, plaintiff had merely sued the wrong parties and the payment by them of sixty-five dollars and the taking of a general release amounted to no more than a purchase of their peace. It is not a case in which the doctrine of election applies so as to bar the present suit. See Kinney v. Kiernan, 49 N. Y. 164; Henry v. Herrington, N. Y. L. J., Nov. 6, 1908.

While the complaint contains allegations of misrepresentations which were not proved on the trial, yet enough was shown to make a prima facie case of breach of the implied warranties as to the authority of defendant’s testator. White v. Madison, 26 N. Y. 117.

Giegerich and Hendrick, JJ., concur.

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