
    Charles D. Cords, Respondent, v. Edward Ruth, Appellant.
    Second Department,
    November 16, 1906.
    ¡Principal and agent — when real estate broker not entitled to commissions.
    The owner of lands, pursuant to the terms of the contract, withdrew the plain- . tiff’s authority to find a purchaser and thereafter sold the premises to a third party, with whom he had negotiated prior to employing the plaintiff. The plaintiff had obtained an offer from the same party, but not at the selling price fixed by the owner. There was no allegation or proof of bad faith on the part of the owner in making the sale. In an action to recover commissions,
    
      Held,- that the plaintiff was not entitled to recover, having never procured a ■ purchaser willing and able to purchase upon the terms fixed by the owner.
    Appeal by the defendant, Edward Ruth, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff.
    
      Ira B. Wheeler, for the appellant.
    No appearance or brief for the respondent.
   Woodward, J. :

The plaintiff alleges an employment by the defendant' for the purpose of effecting a sale of certain real estate' for the sum of $8,500, and demands judgment for $212.50, being two and onc-lialf per cent upon the purchase price. It was established upon the trial that the plaintiff went to the defendant and procured a written authority to sell the real estate in question for $8,500, the defendant agreeing to pay the commission of two and one-half per' cent upon, any price which he ,agreed to accept for the property. The written agreement provided that the authority should continue until the defendant revoked the same in writing. Prior to this authority, which bears'date of Novémber 25, 1905, the defendant had been in negotiation with one Johnson in reference to a sale of this same property, Johnson representing third parties. Soon after'procuring the authority, .the plaintiff entered into a negotiation with the said Johnson, resulting in Johnson making an- offer of $8,000 for the premises, and it is conceded that this offer was rejected by the defendant. Subsequently, and on or before the twelfth day of December, the defendant withdrew the authority iu writing, under the terms of the agreement, and at a later date entered into negotiations with the said Johnson which resulted in a sale of the property to the latter for $8,500, as alleged in the complaint. There is no allegation of fraud or bad faith on the part of the defendant; a;ll that he did was to withdraw the authority, as he had a clear right to do, and he then entered into negotiations with a man- whom he had known and negotiated witli before the plaintiff came into the transaction, and this negotiation resulted in a sale. The plaintiff never procured a purchaser ready, willing and able to purchase the premises upon tile terms fixed by the defendant, and under all of the authorities he is not entitled to recover in this action.

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

Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred.

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