
    De Witt Bruce, Appellant, v. Kate Bleecker Hurlbut, as Executrix, etc., of Gansevoort DeW. Hurlbut, Deceased, Respondent.
    ' Jteal estate broker's commissions — charge as to the conditions under which only they are payable.
    
    In an action brought by a broker, employed by the defendant’s intestate to effect a sale of real property, to recover commissions for his services in procuring .a purchaser, although the sale was not consummated, the court charged,
    
      “Sixth. Under the contract in this case between plaintiff and defendant the commission was not to be paid unless the sale was consummated.”
    
      “ Fourteenth. The risk of failure is wholly the broker’s, and reward comes only with his success.”
    
      Held, that the charge was erroneous, in that it led the jury to believe that the plaintiff could not recover even if the failure to consummate the sale arose solely because of the refusal of the defendant’s intéstate to stand by his offer.
    Appeal by the plaintiff, De Witt Bruce, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 28th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of April, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      John De Witt Peltz, for the appellant.
    
      George H. Mallory, for the respondent.
   Lyon, J.:

This action was brought to recover a brokerage commission of $1,000 for the alleged sale of real estate in Albany known as “ Yan Yechten Hall.”

Defendant’s intestate, in writing, authorized plaintiff to sell the real estate for $41,000, terms cash upon delivery of deed, and agreed to pay plaintiff as commissions $1,000 from tlie proceeds of said sale.

Plaintiff claimed the making of a verbal modification of this writing to the effect that plaintiff should receive, said commission without regard to the price for which defendant’s intestate might sell the property.

Defendant denied .the alleged verbal modification of the writing.

Plaintiff induced, one Dudley to agree to purchase the property for $40,250, and a contract therefor in due form, containing certain interlineations as to the nature of the deed to be given, and bearing; the canceled signatures of the parties, was introduced in evidence.

Plaintiff claimed that this contract was signed, delivered and! accepted by both parties without the interlineations, and that theinterlineations were later made with defendant’s consent. Defendant claimed, however, that the interlineations were made after the' contract had been signed by her intestate, and without his consent and before being signed by Dudley, and that defendant’s intestate, never agreed to the- contract in its altered condition.

A few days subsequent to the cancellation of this contract, defendant’s intestate stated to plaintiff that he had increased the price to $42,000, and plaintiff then telephoned Dudley, with the knowledge and consent of defendant’s intestate, offering the property for that sum. This offer, both plaintiff and Dudley testified, Dudley-accepted, which fact plaintiff testified that he communicated on the. afternoon of the same day to defendant’s intestate, who then stated that he had been thinking the matter over and had decided not to. sell for $42,000.

Defendant’s intestate later called Dudley by telephone and offered to sell the property at an increased price, which he did not state in his testimony, but which Dudley testified was $43,000. Dudley answered that he would later telegraph his decision, which, he did, declining to pay $43,000 for the property.

Dudley testified that he was not only willing, but was able to pay $42,000 for the property.

No further negotiations were had with Dudley for the sale of the property, and defendant’s intestate refusing plaintiff’s demand for the payment of brokerage commission, this action was brought.

The defendant asked the court to charge, among other requests, as follows:

“ Sixth. Under the contract in this case between plaintiff and ' defendant the commission was not to be paid unless the sale was consummated.”
“Fourteenth. The risk of failure is wholly the broker’s, and reward- comes only with his success.”

Each of these requests was charged, and plaintiff excepted.

The plaintiff contends that the effect of the instructions contained in these requests to charge was to lead the jury to believe that plaintiff could not recover even if the jury should find that the contract of brokerage was modified as plaintiff claimed, and that the contract of sale was executed, delivered and accepted prior to the interlineations being made, for the reason that the sale was not consummated ; also, that the plaintiff could riot recover even should the j ury find that the offer to sell the real estate for $42,000 was later duly made and accepted, for the reason that the safe was not consummated, although the failure to consummate the sale arose solely by reason of the refusal of defendant’s intestate to stand by his offer.

We think there is force in defendant’s contention notwithstanding the language of the main body of the charge, and that it cannot be said that the jury did not take the view which plaintiff ■claims, particularly as to the offer and acceptance at $42,000.

We think the judgmeiit and order should be reversed and a new ■ trial granted, with costs to abide the event.

. All concurred; Smith, J., not sitting.

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