
    Jeffrey Hess, Respondent, v. Abraham Bloch, Appellant.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Brokers — Compensation — Performance of duty by broker — Mutual assent as to terms of bargain.
    Where the owner of a house and lot authorized a broker to offer it for sale on written terms which are silent as to the character of the conveyance to be given and the broker produced an acceptable purchaser but the sale was not made.beeause the owner declined to warrant the title to part of the premises covering the bed of an old street, the minds of the parties never met and the broker is not entitled to a commission. In such a case a custom that, where the character of the conveyance is not mentioned, a deed of warranty shall be delivered cannot avail to give the broker a right to a commission.
    Gildersleeve, P. J., dissents.
    Appeal by defendant from a judgment of the Municipal Court of the city of Mew York, twelfth district, borough of Manhattan, entered in favor of the plaintiff.
    Louis J. Hamel, for appellant.
    Joel B. Liberman, for respondent.
   Per Curiam.

The plaintiff recovered a judgment- for commissions in effecting the sale of real property under a written authorization from the defendant, reading as follows:

“January 17, 1907.
“ I hereby authorize Shwitzer & Levis to offer For Sale, No. 1409 Amsterdam Ave., Borough of Manhattan, City of New York, on lot, 25 x 98, for $28^750, subject to 1st. Mtge. $17,000 @ 5fo, due Feb. 1st, 1908. 2nd Mtge. $4,000 to be paid off, if possible, and new 2nd. Mtge. to be taken by me for $7,000 @ Qfo, for four years standing. Said house to be delivered free of all violations of Tenement House Department, City of Mew York, and all other departments. This price and terms to hold good for six days from date. If Shwitzer & Levis sell the house, they are entitled to commission, if they don’t sell they are not entitled to anything.
“A. Bloch.”

The plaintiff procured a purchaser whose acceptability seems to be unchallenged but who refused to enter" into an enforceable contract because the defendant would not warrant the title to a certain portion of the premises covering the bed of an old street. The defendant was willing to quitclaim as to this portion or sell subject to a possible paramount title. The character of the deed, could not be agreed upon, and the parties separated without further negotiations. The plaintiff was permitted to introduce evidence of a custom that, where the character of the instrument of conveyance of title is not mentioned, a deed of warranty shall be delivered. It is clear that the minds of the defendant and proposed purchaser never met. They never reached any definite agreement as to the conditions and details of the sale. Therefore, the plaintiff cannot be said to have earned a commission. And, even if the custom contended for by the plaintiff did exist, it could not avail him in view of the legal principles which must control his right to recover. Haase v. Schneider, 112 App. Div. 337.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Leventbitt and Eblangeb, JJ., concur.

Gildersleeve, J.

I dissent. The judgment should be affirmed on the opinion of the court below.

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