
    Stephen Comesky and James E. Morier, Copartners Doing Business under the Firm Name of Comesky & Morier, Respondents, v. J. Frank Fellows, Appellant.
    Third Department,
    March 4, 1914.
    Principal and agent — broker’s action for commissions — proof justifying recovery — charge.
    Action by a real estate broker to recover commissions for procuring a purchaser for the lands of the defendant. Conflicting evidence examined, and held, that a verdict for the plaintiff was not against the weight of the evidence and that a judgment in his favor should be affirmed.
    Charge to the jury examined and approved.
    Appeal by the defendant, J. Frank Fellows, from a judgment of the County Court of Rensselaer county in favor of the plaintiffs, entered in the office of the clerk of said county on the 13th day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1913, denying defendant’s motion for a new trial made upon the minutes.
    
      Henry W. Smith [S. B. Smith of counsel], for the appellant.
    
      Thomas F. Galvin, for the respondents.
   Woodward, J.:

The plaintiffs bring this action, as brokers, to recover a commission alleged to have been earned by them in procuring a customer who purchased the defendant’s premises at a price satisfactory to him. It is not disputed that the plaintiffs were at one time employed for the purpose of procuring a customer, and there is evidence that the defendant, while filing an asking price of $9,500, directed the plaintiffs to look for customers and to confer with him as to any offers which they might obtain. There is likewise evidence that the plaintiffs advertised for customers, and that one Deavitt responded to the advertisement and made an offer of $7,500, which was reported to the defendant, who rejected the offer; that after considerable negotiation Deavitt made an offer of $8,000, which was likewise rejected by the defendant, and that in a few days after this offer through the plaintiffs, Deavitt purchased the premises from the defendant for $8,200, without the knowledge of the plaintiffs, and the theory of the defense is that the plaintiffs are not entitled to the commission agreed upon because of the fact that some two years before the defendant had had some negotiations with Deavitt who had at that time made an offer of $8,000 for the premises, and that as the plaintiffs failed to get Deavitt to raise the offer above that figure they failed in the performance of their contract, and it is contended that the defendant had taken the property out of the hands of the plaintiffs before the sale was made.

The issues involved were submitted to the jury, and, while it is true that there was a conflict of evidence, we are not able to discover such a weight of evidence in support of the defendant’s contention as to justify a reversal of the judgment entered upon the verdict of the jury, and unless there was reversible error in the charge of the court, no ground is pointed out which is sufficient to defeat the plaintiffs’ recovery. It may .he that abstractly the request to charge “ that if the jury decides on all the evidence that the defendant sold to Mr. Deavitt personally in continuation of negotiations begun before the plaintiff entered into the matter, whether or not Mr. Morier, the plaintiff, was still in his employ, he is not entitled to commission,” was proper enough, but the learned court had clearly pointed out the law governing the case; had indicated clearly that the defendant, acting in good faith, could sell his property where the broker had failed, and we are of the opinion that the case would have gained nothing in clearness from a granting of the request. The refusal does not, in our opinion, constitute reversible error, and the judgment should not he reversed.

The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  