
    John Reis Company, Respondent, v. Edward Zimmerli, Appellant.
    Second Department,
    December 24, 1915.
    Principal and agent — broker’s action for commissions — provision that commissions are payable when title passes.
    Where a contract employing a broker to procure a purchaser for lands expressly provided that he should be entitled to his commissions “ upon passing of title as agreed,” no commissions are recoverable where title never passed, although he found a person willing and able to purchase the property.
    Appeal by the defendant, Edward Zimmerli, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1915, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Leonard J. Reynolds [Richard A. Geis with him on the brief], for the appellant.
    
      Henry M. Dater [ Jay S. Jones and Edward J. Fanning with him on the brief], for the respondent.
   Rich, J.:

The defendant appeals from a judgment directed in favor of the plaintiff at the close of the evidence in an action to recover for services rendered by a broker in procuring a purchaser for real property owned by the defendant. Each party moved for the direction of a verdict; the defendant’s motion was denied, and plaintiff’s granted.

The only question presented by this appeal is whether the evidence is sufficient to sustain the verdict. It is not disputed that plaintiff’s secretary and treasurer procured a purchaser who was ready, willing and financially able to purchase defendant’s property upon terms which were satisfactory, and it appears that a contract providing for the purchase of the property was duly executed and that at the time of the execution $2,000 was paid to the defendant.

The only proof of any agreement on the part of defendant to pay commissions is contained in the contract providing for the sale, as follows: “ The seller agrees that Mr. Ohnewald of Reis & Go. brought about this sale and agrees to pay the broker’s commission therefor and who shall be entitled to his commission upon passing of title as agreed. ” When the action was commenced, the plaintiff based its right of recovery upon that provision of the contract, the allegation in the complaint being that the defendant recognized, in such contract, the plaintiff’s representative as being the procuring cause of the sale and agreed to pay it the sum of two and one-half per cent of the purchase price of $45,000 “upon passing of title as agreed. ”

Upon an appeal from an order sustaining defendant’s demurrer to the complaint, we held it to be defective in that it failed to allege that the title to the premises ever passed, or that it failed to pass by reason of fault on the part of the defendant, and consequently failed to state a cause of action (155 App. Div. 260). The complaint as subsequently amended declared upon an alleged agreement entirely independent of the one contained in the contract of sale, but the difficulty with his case is that he made no proof of any independent agreement. The only evidence of an employment or agreement to pay commissions is furnished by the clause in the contract quoted above, which was introduced in evidence by the plaintiff under that clause. The defendant did not become obligated to pay a commission until the passing of title. It was shown that the title never passed, and consequently the plaintiff was not entitled to the commission. The defendant’s exception to the denial of the motion for a direction of a verdict in his favor, and to the direction of a verdict in favor of the plaintiff, were both well taken.

It follows that the judgment and order must be reversed and the complaint dismissed, with costs.

Present—Jenks, P. J., Carr, Mills, Rich and Putnam, JJ.

Judgment and order reversed and complaint unanimously dismissed, with costs.  