
    C. H. Diamond and Company, Appellant, v. Marcellos Hartley, Respondent.
    
      Beal estate broker—not entitled to commissions where a sale fails became the width of the property is less than represented..
    
    Where a property owner, who is not seeking to sell his property, upon being approached by the representative of a real estate broker, fixes a price at which he is willing to sell, and in reply to a question asked by the broker’s representative concerning the size of the property, states that it is twenty-five feet front, the broker is not entitled to recover commissions upon producing a person who was willing to purchase the premises at the price named if they had been twenty-five feet wide, but who refused to do so when they proved to be twenty-four feet seven and one-half inches wide, where it does not appear that the misrepresentation as to the width of the lot was intentional, or that the broker’s representative understood that it was intended as a warranty of the width of the property.
    Appeal by the plaintiff, C. H. Diamond and Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of May, 1899, as amended by an order entered in said clerk’s office on the 17th day of May, 1899, upon the dismissal of the complaint by direction of the court, after a trial .before the court and a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the 19th day of. May, 1899, denying the plaintiff’s motion for a new-trial made upon the minutes.
    
      
      William C. Breed, for the appellant.
    
      Paul D. Cravath, for the respondent;
   Ingraham, J.:

Upon the former trial of this case the plaintiff had a judgment which was reversed on appeal by this court in the second department, and it was there hefd that the plaintiff had failed to prove facts entitling him to a recovery and that the complaint should have been dismissed. The conclusion at which the court arrived is stated in the opinion as follows: “The law of this ease seems to be-well settled ; the plaintiff must be able to establish that it has produced a party able and willing to take the property offered by the defendant at the defendant’s own terms; and to do this it must show that the parties. to the transaction have reached an enforcible agreement-as between themselves. The defendant authorized the plaintiff, to sell a certain piece of property at a given price. The plaintiff has failed to produce a party who is willing and able to take this property upon the terms prescribed by the defendant, and it has not ear,ned the commission which it seeks to recover.” (38 App. Div. 87.) As that is the law of this case, which we accept without question, the only question before us is whether the plaintiff, has proved facts, in addition to those proved upon the former trial, which required a different result. A comparison of the statement of facts-in the opinion upon the former appeal, with the evidence upon this appeal, fails to show any substantial difference in the case' as now presented. The defendant was the owner of a piece of property No. 17 West Thirtieth street, and an employee of the plaintiff went to the defendant and asked if his house was for sale, and, if so, at what price. The plaintiff’s statement of the interview is as follows : “ I was ushered in to see Mr.Hartley, and I asked him if he desired' to sell his property No. 17 West 30tli street. He said he would sell same at a price. I asked him if he would' entertain an offer of $75,000. He said no, sir, he would not sell for anything less than $85,000. * * * I also asked him the size of his .property. He said : ‘ It is 25 feet front.’ The exact depth he did not know, but said I could refer to the city atlas.”

It is not disputed that the plaintiff failed to procure a customer ready and willing to purchase the house No. 17 West Thirtieth street at the price named and upon the terms imposed by the defendant. He claims that he did procure a person who was ready and willing to purchase the premises, if they had been twenty-five feet wide, at the price that the defendant finally agreed to take. The premises, however, were not twenty-five feet wide, but twenty-four feet seven and one-half inches, and the purchaser produced by the plaintiff refused to purchase the property at the' price named. The plaintiff’s contention seems to be that because the defendant, in answer to the plaintiff’s request as to the dimensions, stated that the same was twenty-five feet wide, the defendant became liable to pay him commissions when he produced a person who was willing to purchase, if it had been twenty-five feet wide. It is difficult to see, however, upon what principle such a liability was imposed upon the defendant. He was not seeking to sell his property; the plaintiff was seeking to secure a purchaser who would purchase it from him. He was asked if he would sell his property No. 17 West Thirtieth street. He agreed to sell, naming a price. It was the particular property as it existed, upon which was a building, and the boundaries of which could be ascertained-by inspection, that the defendant was asked if he would sell, and expressed his willingness to sell. His statement to the plaintiff that the property was of a certain width, in which he made a trifling mistake of a few inches in the dimensions, could not impose upon him a liability for commissions. He did not warrant the property to.be of those dimensions. There was nothing to lead him to suppose, when he made that statement — acting as it is evident he was, in entire good faith, supposing himself to be entitled to twenty-five feet — that the plaintiff would accept his statement as an accurate measurement and base an express contract to purchase upon such a description. What the plaintiff went to buy and what the defendant authorized him to sell was the house No. 17 West Thirtieth street as it stood, and for that house as it stood these plaintiffs have never procured a purchaser willing to purchase upon the defendant’s terms.

There was here no suspicion of fraud or intended misrepresentation. The person, when asked to sell his property, upon inquiry as to its dimensions gave the size of the plot called for by the deed conveying the property to him, without being informed that the statement was to be used for any particular purpose. It is quite -clear that the plaintiffs representative did not consider that the defendant was making any exact representation as to the size of his lot, for in the contract that he prepared for the defendant to exe- ' cute the property is described as the lot of land, with the building thereon, situate in the city of Hew York, and known as Ho. 17 West Thirtieth street, and more particularly bounded and described as follows, etc,; and then after ‘describing the lot by metes and bounds, adding, “the said sizes and dimensions being the same more or less.” It is -sufficient, however, to say without further discussion that the case presented upon- this trial does not substantially differ' from that •presented to the Appellate Division upon the former appeal, and, that under the decision upon that appeal, the plaintiff had failed to prove facts entitling him to'the commissions, and the court below was right in dismissing the complaint.

It follows that the judgment appealed from was right and should be affirmed, with costs.

Rumsey, Patterson and O’Brien, JJ., concurred. .

Van Brunt, P. J.:

I concur upon the ground that the case now does not substantially differ from what it was when presented to the second department.

Judgment affirmed, with costs.  