
    William P. Rae Company, Respondent, v. Peter F. Kane and Others, Appellants.
    Second Department,
    October 4, 1907.
    Principal, and. agent —broker’s action for ,commissions—failure to , ' produce purchaser. .
    . A broker, with whom lands have been listed for sale, who shows .the lands. together with other lands to a committee .of the. board of educatidn of the city of New York, which selected the other land and passed a resolution to purchase,' which resolution was. annulled by subsequent action of the board .of, estimate and apportionment, is. not ^entitled to recover commissions .When a sale to the city is effected by the efforts of another .broker.
    A real ..estate.hrdke? is entitled to commissions only qn finding and- producing a purchaser. , " ■
    Although a motion to direct a verdict for the defendant has been erroneously denied, the appellate court cannot grant the motion, but must -reverse the judgment and order a new trial.
    Appeal by the defendants, Peter F. Kane and' others, from' a judgment of the Supreme Court in favor of the plaintiff,'entered in the office of the clerk of the county of Kings on the- 4th. day of December, 1906, upon the verdict of a'jury, and also from :an order entered in said. clerk’s office on the 2Sth-day' of Deeenibér, 1006, denying the defendants’ motion for a-new trial made upon the minutes.
    The action was to recover a "broker’s commission for the sale of a farm.
    
      Richard M. Martin, for the appellants.'
    
      Frank Paine Reilly [Robert H. Elder with him oír tiré brief], . for the- respondent.
    
   Gaynor, J.:

The controlling facts in the case are that the defendants put their farm of about 103 acres in the hands of a large number of brokers for sale, including the plaintiff; that the plaintiff’s representative saw them ; that they authorized'the plaintiff to sell the farm at §650 an acre; that the plaintiff went with a committee of- the board of education of the city of New York on April 25, 1904," and . showed them several farms in ; the'same vicinity, including the defendants’ farm; that on one of these farms the plaintiff had a purchase option; that the said committee selected that farm for purchase, and for .a truant school ; that the board of education resoIvedtopnrchase.it; thatthe boardm.f estimate and apportionment refused to do so on J une 22, 1904 passing a resolution that no money would be spent for a school for truants until all willing pupils were first provided for; that on July. 23 another broker called on the defendants and. informed .them he might sell their land to the board of education, and got an agreement from them that if he did so they would. pay him a commission; that up to this time the plaintiff had never informed the defendants and they did’ not know that the board of education or the city was a proposed purchaser, or that any effort had been made to sell the defendants’ farm to it; that on July 25, 1904, thp defendants, through the said ■second broker, made an agreement with the .Comptroller of. New York to sell the land to the city for §700 an acre; that on September. 16, 1904, the board of estimate and apportionment approved such proposed purchase ; that on September 21, 1904, the board of .education approved of it; and the purchase was made.

The motion to direct a verdict for the defendants should have been granted. The plaintiff was entitled to a commission only on finding and producing a purchaser. If did not produce the .purchaser or even notify the defendants that it was negotiating with the purchaser. The defendants made tlie sale through another broker, agreeing to pay him a commission, without knowing that the plaintiff had ever done anything to sell the land to the board of education.

Although the defendants were. entitled to have, the motion to direct a verdict in their favor granted,' our practice is in such a condition that it appears that we cannot now grant the motion and end the ease, but only reverse the judgment and order a new trial. This practice, in many cases leads to much perjury on the new trial.- ■ The judgment and order should be reversed and a new trial granted. •

Bich, J., concurred; Bjkschbeeg, P. J., Woodwabd arid Hookeb, JJ., -concurred in result. - .

Judgment and order reversed and new trial granted, costs to abide the event. -  