
    Benjamin F. Gerding, Resp’t, v. John B. Haskin et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed January 3, 1893.)
    
    1. Bbokebs—Commissions—Charge.
    In an action to recover broker’s commissions where the broker had found a purchaser for the real estate at the price fixed by defendants, but the latter had refused to consummate the sale, the trial judge refused to charge that “if the jury accepted defendant T.’s testimony that no commission should be paid until the deed actually passed no verdict could be rendered for the plaintiff.” Held, that the judge properly refused so to charge, as he had already instructed the jury that “ although a broker becomes entitled to the usual commissions when he brings a purchaser to the owner who is able and willing to take the property, this may be varied by express agreement.”
    2. Same.
    Such request of defendant was framed in a form which could not have been charged even though the charge given had not been made, as it asked the court to charge that if the jury believed a witness they must find in a certain way.
    Appeal by the defendants from a judgment entered on a verdict rendered in favor of the plaintiff, and from an order denying a motion made by the defendants for a new trial.
    
      Abel Crook, for app’lts; C. Bainbridge Smith and J. Tracey Langan, for resp’ts.
   McAdam, J.

action is to recover brokerage for procuring a purchaser for property of the defendants (owned as tenants in common), and known as the Ryer farm at East Tremont, N. Y. The plaintiff alleged and proved his employment to sell for $110,000. (2) That lie found purchasers willing to buy on the owners’ terms, and (3) that the defendants ultimately refused to consummate the sale. The jury found for the plaintiff andawarded him the usual brokerage of one per cent. The conditions upon which brokerage is earned are not disputed, and the law in regard thereto too well settled to require re-iteration. It is sufficient to say, without recapitulating it, that the evidence sustains the finding of the jury, a circumstance which-requires us to consider with care the specific objections urged against the recovery. First'. It is claimed that one tenant in common cannot bind his co-tenant to sell property or perform any duties in respect thereto. Van Doren v. Balty, 11 Hun, 241; Bowman v. Travis, 54 N. Y, 640; McLean v. McLean, 96 id., 655 ; Tuers v. Tuers, 100 id., 200. The answer to this is that the evidence sufficiently shows a joint employment by both defendants. Second: That the proposed purchaser must be able, as well as willing, to perform. Duclos v. Cunningham, 102 N. Y, 678; 2 St. Rep., 13. This is true, but ability to perform is presumed in the absence of evidence to the contrary, and there was no proof of inability here: Hart v. Hoffman, 44 How. Pr., 168. Third: The defendants rely upon two exceptions; one, to the refusal to dismiss the complaint, which is without merit, because the case on the conflicting evidence presented questions which the jury alone could lawfully determine; the other is to the refusal of the trial judge to charge that “ if the jury accepted the defendant Tappeu’s testimony, that no commission should be paid until the deed actually passed, no verdict could be rendered for the plaintiff.”

The trial judge had already instructed the jury that although a broker becomes entitled to the usual commissions when he brings a purchaser to the owner who is able and willing to take the property, “ this may be varied by express agreement.” This was stating the law as clearly as the defendants were entitled to have it put. The defendants framed their request in a form which could not be charged, for, as the court of appeals said, in Dolan v. D. & H. C. Co., 71 N. Y., 285, “it is not proper to refer to the testimony of a witness, and ask the court to charge that if the jury believe the witness, they must find in a certain way, or that a certain conclusion follows,” as it prevents the jury from determining what facts are established by the witness’ evidence. See, also, McGrath v. Met. L. I. Co., 6 St. Rep., 376. This disposes of all there is to this case, and as no error was committed to the prejudice of the defendants, it follows that the judgment and order appealed from must be affirmed, with costs.

GlLDERSLEEVE, J., COnCUl’S.  