
    George F. Woods, Respondent, v. Myron C. Burton, Appellant.
    (Supreme Court, Appellate Term,
    September, 1897.)
    Beal estate broker — Eight to commissions.
    A real estate broker is not entitled to commissions unless he is the procuring cause of the sale, and where it appears that his agency was terminated before the purchaser was introduced to the owner by another broker, the original broker cannot recover.
    Appeal by defendant from the judgment of the justice of the Eighth District Court in favor of plaintiff for $130 damages, besides costs in an action to recover broker’s commissions for procuring •the sale of defendant’s lots in Bathgate avenue to one Michael Mahler.
    J. C. Julius Langbein, and Langbein Brothers & Langbein, for appellant.
    Robert J. Robeson, and Quincy, Wendel & Robeson, for respondent.
   Daly, P. J.

The dispute in this case is whether the plaintiff was the procuring cause of the sale of defendant’s lots on Bath-gate avénue, New York, to Mr. Mahler. The evidence .does not support his claim. He testifies that he offered the lots to Mahler on May 5th. It appears, from a postal card, dated May 2d,.from Mahler, addressed to another- broker, named Fenton, and from the testimony of Fenton, that the property was offered to Mahler by the latter broker, and Mahler was introduced to defendant by that broker before 'May 5th. . It also appears, from the testimony of Mahler, that the property was offered to him by' at least two other brokers besides plaintiff and Fenton. Neither the plaintiff nor Fenton succeeded in getting him to give the price demanded by the defendant. He-bought the lots, in the following September, for less than the sum originally asked. The case fails to show that this purchase was brought about by any effort of the plaintiff; ’ and, as the property was not originally brought to the purchaser’s attention by the plaintiff and the purchaser was not introduced to the defendant by the plaintiff, there seems to be no ground for the recovery which has been .allowed. The defendant swears that, after giving his terms to the plaintiff in a letter of April 17th, he called upon him and was told by plaintiff that his partiy would' not take the lots; that defendant said to him he had other parties considering the property, and, if plaintiff’s party would not take it, the matter was off; that plaintiff replied he could not do anything, and defendant then told him that the matter was off, that he had other parties considering the property, and plaintiff replied that it was all right. The plaintiff testifies with respect to this interview, that he told the defendant he had parties considering the lots, and would inform defendant as soon as he got an answer; but he does not otherwise deny defendant’s statement as to whati occurred at the interview, and it does not appear that he communicated after that with the defendant, even according to his promise.. The uncontradicted testimony, therefore, seems to show a termination of the plaintiff’s agency before the introduction of the purchaser to the defendant by the broker, Fenton.

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

McAdam and Bischoff, JJ., concur.

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