
    Edgar L. Pierson, App’lt, v. Norman L. Munro, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Brokers—Commissions.
    Plaintiff employed one Squire to sell his business for him, and Squire employed plaintiff to assist him, for which plaintiff was to pay an extra commission to Squire. Plaintiff sent his partner to England, where he made a contract for. the sale conditioned upon certain representations alleged to have been made by defendant proving true on examination, and defendant, without knowing the terms of the contract, cabled a confirmation thereof. Upon an examination being made the sale fell through, and plaintiff claimed the commission on the ground that the sale failed because of the falsity of the representations. There was no proof that such representations were made. Held, that plaintiff was not entitled to recover.
    Appeal from judgment dismissing the complaint
    Action to recover commissions claimed to have been earned by plaintiff as broker in negotiating a sale of defendant’s business; which sale was alleged to have fallen through because of the falsity of defendant’s representations as to its productivity.
    Plaintiff’s testimony tended to show that he sent his partner to England to negotiate a sale; and that he made a contract with a company there to take the business providing that upon an ex.amination it was found that such representations were true; that the company sent an accountant to make an examination, who reported that the representations were false, and thereupon the sale fell through.
    Defendant denied any employment of plaintiff, and testified that he employed one Squire to sell the property, who employed plaintiff to assist him, and defendant agreed to pay an extra com-mission on that account. Plaintiff did not show him the letter from England, but told Squire it was necessary to cable a confirmation, which defendant did. There was no proof that defendant made the representations.
    
      Edward Schenck„ for app’lt; Joseph G. Gay, for resp’t.
   Dykman, J.

This is an action to recover commissions for the sale of the plant and business of the defendant in the city of New York, consisting of a printing and publishing establishment, real property, machinery, plates and printing presses, several publications and the good will of all the business.

The price fixed for the property was $2,000,000. and the commission to be paid in case of a sale was fixed at $75,000, and that is the amount claimed in this action.

The complaint was dismissed upon the trial because no sale was established.

There was no effort to prove a sale because none had been effected, hut the plaintiff claimed the right to recover without showing a sale on the ground that the defendant had over stated the productivity of the plant.

The plain and conclusive answer to the proposition was that the defendant had made no representations upon the subject.

We think the judgment may be sustained upon two grounds. First, the defendant never employed the plaintiff to make the sale, and second, that no sale was ever made.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  