
    Michael Cohen, Appellant, v. John T. Farley, Respondent.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Principal and agent — The fault of the former cannot deprive the latter of commissions.
    Where a principal expressly states to his broker that his premises have a width in front of twenty-three feet and the broker repeats this statement to the proposed purchaser, and the latter subsequently refuses to complete solely because the true width proves to be five inches less, the broker has earned his commissions, as the sale has failed only through the fault of the principal in misstating an essential element of it.
    Appeal by the plaintiff from a judgment for costs rendered in favor of the defendant in the seventh district, Municipal Court, borough of Manhattan.
    Moss & Feiner, for appellant.
    Redfield, Redfield & Lydon, for respondent.
   Freedman, P. J.

The plaintiff brought this action for a commission, claimed by him to have been earned as a broker in procuring a purchaser for certain premises owned by the defendant.

The material facts in the case are undisputed. The plaintiff was authorized by the defendant to procure a purchaser for certain premises owned by the defendant, for which the defendant agreed to pay plaintiff the sum of 1 per cent, commission.

To enable the plaintiff to effect a sale the defendant stated to the plaintiff, that the lot to be sold was twenty-three feet wide by one hundred feet deep. He also gave to the plaintiff a card signed by him, stating that the lot was for sale, that the size was twenty-three by one hundred, and upon the card was a map or diagram, showing the adjoining streets, and upon which the dimensions of the lot were shown in figures to be twenty-three feet at each end and one hundred feet in length.

The plaintiff took the card to one Mayer, offered the lot to him, and subsequently introduced Mayer to the defendant, who agreed to accept the sum of $15,500 for the lot. Afterwards the plaintiff and the defendant met by appointment, at the office of the defendant’s attorney, a contract was drawn, and the plaintiff went with it to Mayer’s office, who, upon reading it, discovered that the dimensions of the lot as stated in the contract were but twenty-two feet and seven inches in front, and refused to make the purchase, unless the size was twenty-three by one hundred as previously represented to him to be. It appearing that the defendant actually owned but twenty-two feet seven inches in front the sale was not made.

It was conceded upon the trial that Mayer was able to make the purchase, and he testified that the only ground for his refusal to make the purchase was the fact that the lot did not contain the number of feet frontage that it had been represented to him to contain, viz.: twenty-three feet. There can be no question, but that the size of the lot was regarded as an important element in the contract between the plaintiff and the defendant, and that the plaintiff had a right to, and did rely upon the statement made to him by the defendant as well as that contained on the card, in obtaining a purchaser.

The defendant testified that he used cards similar to the onte given the plaintiff, in advertising his lots for sale, and he thereby made the dimensions of the lot a material and essential part of his statements to induce purchasers to buy.

Acting in good faith, and with no knowledge of the incorrectness of the statement, the broker found a purchaser for the lot, who, after examination, and also relying upon the statements contained on the card aforesaid, and believing the size of the lot to be twenty-three by one hundred was able, willing and ready to purchase at the price the defendant agreed to accept. The case of Diamond v. Hartley, 38 App. Div. 87, is cited by the respondent as being similar to the one at bar. An examination of that case shows an entirely different state of facts;

In Diamond v. Hartley, supra, it did not appear that anything was said between the broker and the seller, regarding the dimensions of the lot, until the seller had been informed by the broker, that a sale of the premises had been effected, and until the contract of sale was ready for execution. The attorneys for the purchasers then discovered that the dimensions of the lot as contained in the abstract of title were twenty-four feet seven and one-half inches wide, while the contract stated it to be twenty-five feet wide, and the buyer thereupon refused to complete the purchase unless a corresponding reduction in price was made. Nowhere in the case does it appear that the seller did anything in -any way to induce anyone to become a purchaser. As stated in the opinion, “ he made no representations for the purpose of inducing a sale so far as appear by the record. No suggestion of the kind is made.” He simply told the broker that he would” sell his house and lot for the sum of $82,000, and the broker assumed to find a purchaser. In that case the court quoted with approval the case of Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, where the court said: If the efforts of the broker are rendered a failure by the fault of the employer ° * * * if the latter (the buyer) declines to complete the contract because of some defect in the ownership of the seller, * * * some defect which is the fault of the latter, then the broker does not lose his commissions.”

In the case at bar, the defendant expressly stated to the broker that his lot' was twenty-three by one hundred, those dimensions were communicated to the proposed purchaser, upon that statement the intended buyer relied, and by reason of its material variance from the representations made to induce the sale, he refused to purchase. It surely was the fault, whether innocently or otherwise is immaterial, of the defendant, and the failure to complete the sale does not appear to be attributable to the plaintiff. Judgment must be reversed.

MacLean and Leyentkitt, JJ., concur.

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