
    Arthur B. Fleet and Arthur W. Porter, Appellants, v. Joseph S. Barker, Respondent.
    Second Department,
    June 7, 1907.
    Principal and agent — broker’s action for commissions — evidence of financial standing of purchaser.
    In an action by a real estate broker for commissions in procuring the execution ' ■ of a contract of sale’ it is error to permit the defendant to introduce testimony as to the financial means of the purchaser if there is no allegation or proof of bad faith or that the broker induced the defendant to executethe contract by. representations as to the financial ability of the purchaser.
    Appeal by the plaintiffs, Arthur B. Fleet and another, from, a ' judgment of the Municipal Court of the city of New York,-borough of Brooklyn, in favor of the defendant, rendered on the 8th day of November, 1906.
    
      John H. O'Neill, for the appellants.
    
      John F. Brush, for the respondent.
   Jenks, J.:

The action is by broker for commissions against the seller of real estate, tinder proper, objection and exception the court permitted the defendant to. ask the purchaser, “ What money did you have at.the time you purchased or agreed- to purchase %" and thereupon extended inquiry was made as to' the financial means of the purchaser. The contract was executed. There was no' allegation or proof that the .broker at or before such execution, induced the defendant to execution by any representations or any bad faith on • the part of the broker. The testimony was not made admissible in that one of-the plaintiffs had testified that he had expressed to the seller an opinion favorable to the financial ability of the purchaser, inasmuch as. that expression was given after the execution of the contract. I think that the ruling must be regarded as reversible error in this case (Alt v. Doscher, 102 App. Div. 344), for although the court did not give its reasons for the dismissal of the complaint, I cannot assume that it was not moved to such disposition of the case, or at least induced to such course .by this testimony. For the testimony did not show the financial ability of the purchaser beyond grave doubt, and the court immediately, before the initial question into this financial responsibility, stated, “ Tlie question is, was he able to carry out the contract.” ■ I do not intend to determine whether or not the plaintiffs made out a case upon the merits. That question is left entirely open for the new trial. ■

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

, Hirschberg-, R. J., Woodward, Gaynor and- Miller, JJ. concurred.

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