
    Edmund O. Sorapure, Appellant, v. Edmound Schaeffer & Company, Respondent.
    Second Department,
    June 17, 1910.
    Vendor and purchaser — contract to purchase land — action to recover deposit — erroneous dismissal of complaint.
    Where a corporation engaged in the purchase and sale of real estate made arrangements with a customer through its 'secretary to take his automobile at unagreed value as pari payment on a lot, and he turned over his automobile but later refused to sign the contract of purchase because of certain provisions therein, and demanded the'return of the automobile, or its value, which was refused, the customer having proved these facts in an action to recover the agreed value of the automobile should not be nonsuited at the close of his case.
    ■Appeal by the plaintiff, Edmund O. Sorapure, from a judgment' of the Municipal Court of the city of ¡New York, borough of Brooklyn, in favor of the defendant, rendered on the 25th day of January, 1910, dismissing the. complaint at the close of the plaintiff’s case.
    
      Ferd W. Buermeyer, for the appellant.
    
      T. G. Sheehan, for the respondent.
   Rich, J.:

The defendant is a domestic corporation engaged in the purchase and sale of real property. Its secretary, one Meyer, had charge of the sales of its .propérty as a broker, and in August, 1909, he made an- arrangement with the plaintiff by which the latter was to. purchase a lot for $300, and was to turn overas part payment therefor a second-hand automobile at the agreed price of $125. The secretary promiséd to have a contract prepared between the defendant, whom he represented, and the plaintiff, and sent to the latter for execution. The plaintiff accordingly gave Meyer a bill of sale and possession of the automobile, and received from him a receipt for $125, “ to be applied to lot 409, Blk. 14.” Later a contract in duplicate and a book was sent by defendant to- plaintiff by mail. ..The contract was for the sale of lot 409, block 14, at a consideration of $300, and was executed by the defendant acting through its president, Edmound Schaeffer and its secretary, said Meyer,- who requested plaintiff to sign both contracts and “return one to us.” Plaintiff refused to sign the contracts because of some provisions they contained. Meyer refused to change them or to return plaintiff’s automobile or its value, and plaintiff brought this action to recover $125 as a deposit made by him upon his agreement to purchase the lot. Upon the trial he proved these facts, and, when he rested his case, the court, upon defendant’s motion, dismissed his complaint. From the judgment accordingly rendered this appeal is taken. Ho ground was stated upon which the motion to dismiss the complaint was based, and none is given by the court in his ruling. The plaintiff had certainly made a prima facie case entitling him to go to the jury. He had proven that the property for which he bargained was the property of the defendant, and that his agreement was made with its secretary and agent having authority to act for the defendant in the sale of its property; that such agreement and transaction were assented to by the defendant. Ho contract was entered into between the parties, they were unable to agree upon terms, and a demand was made and refused for the return of the deposit. These facts established a prima facie case, and the dismissal of the complaint was error.

The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Woodward, Jenks, Burr and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  