
    Jacob Leitner, Respondent, v. Max S. Boehm et al., Appellants.
    Appeal by defendants from a judgment of the Municipal Court, second district, borough of The Bronx, New York city, in favor of plaintiff.
    Friend, House & Grossman, for appellants.
    Erdman, Levy & Mayer, for respondent.
   MacLean, J.

One Solomon Marks, the assignor of the plaintiff, acting as broker for the defendants in the summer of 1898, procured a purchaser for their certain premises on One Hundred and Fifty-fourth street, at $9,500, the price named by them, whereupon an agreement of purchase and sale was entered into between the person so brought by Marks and the defendants, on -the 19th of July, 1898. For making that bargain, the broker was entitled, as admitted, to a commission of 1 per cent, upon the price, or $95; but dispute arose as to the time and condition of payment, the defendants contending that instead of being entitled to his commission upon bringing to the vendor a person ready and willing to accept his terms, and with whom a contract was entered into, that both by special agreement in this case and by common custom, where property was sold as was this, with an agreement for ,a builder’s loan, the broker was only to be paid when the purchaser had earned his first payment, in this instance, when the second tier of beams was laid. To sustain their contention respecting the custom, defendants testified themselves, one from a year’s, and the other from twelve years’ experience as dealers in real estate, to such a habit in their own transactions, and to having heard of such a custom from others. For them also testified another witness as to such custom, but he admitted on cross-examination that in all of the instances of this character of which he .had known, there had been a special agreement to this effect. ¡Neither the defendants nor their witness gave evidence of anything to show the existence of a valid custom. The plaintiff’s witness and assignor denied the alleged agreement. Upon this conflict of evidence respecting the one issue in the action, the justice presiding at the trial, in submitting the ease to the jury, properly charged that if, at the time the sale was effected, there was no special agreement in respect to a commission, the verdict should be for the plaintiff for $95; but if, on the other hand, there was an agreement between Marks and the Boehms that the commission should not be payable until the second tier of beams was up, the verdict should be for the defendants. To this part of the charge, the defendants excepted, and upon that exception, principally rests their appeal. But the exception was not tenable. The like is time of the exception taken to the refusal of the justice to charge respecting the weight of evidence and to certain others taken as to the admission or rejection of evidence upon the trial.

The judgment should be affirmed, with costs.

Freedman, P. J., and Leventritt, J., concur

Judgment affirmed, with costs.  