
    Charles Veit, Appellant, v. Henry Schlachter, Respondent.
    Second Department,
    June 7, 1907.
    Principal and agent — broker’s action for commissions — erroneous nonsuit.
    When in an action to recover brokers commissions on the sale of lands, the plaintiff testifies that he was employed by the defendant.to sell the property; that he introduced a prospective purchaser; that the defendant informed him that such prospective purchaser had already visited the property, but promised ■to pay him the commission if the sale were-made, it is-error to'nonsuit even, though the purchaser, when called as a witness by plaintiff, testifies .that he told her of .the property, but that she already knew of it and was not induced by him to make the purchase. . ’ .
    
      Appeal by the .plaintiff,-Charles Veit,, from a. judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 20-th day of -April,'1906.
    
      Joseph B. Marker, for the appellant.
    
      John H. Steenwerth, for the respondent.
   Miller, J.:

This is an action to -recover broker’s commissions. At the close of the-plaintiff’s case the defendant moved to dismiss the. complaint on the ground -that the plaintiff had failed to prove a'cause of action.'- The justice reserved -decision, whereupon the defendant rested without offering any evidence. Subsequently the motion to dismiss was granted, and judgment of nonsuit rendered.. '

The plaintiff testified that lie was employed by the defendant to sell the projierty; that lie informed a Mr. and- Mrs. Goepert that-the projier-ty was for sale (Mr. Goepert had left his address at the plaintiff’,s office with the information that he desired to make such a'purchase); that he introduced Mr. Goepert to the defendant; that the defendant informed: the plaintiff that Mrs: Goepert had already visited the property, but promised to pay him a- commission if the sale was made. Mrs. Goe.pert’subsequently made the purchase. She was called as a witness by the plaintiff and admitted' that lie told her of the property, but claimed that she already knew of it and that she was not induced by the plaintiff to make the purchase, but obtained a reduction in' price because the transaction was consummated without the intervention of a broker.

"The-plaintiff’s testimony respecting his efforts to sell the property was tincontradicted, as was also liis testimony of the positive; promise . made by the defendant to. pay the commission if a sale was made to Mrs. Goepert. It could, hot be said, therefore, that there was' an entire failure on the plaintiff’s part to- prove his cáse,.and the ■ judgment of nonsuit was improperly granted and should be ' reversed.

Jenks, Hooker, Gaynor and Rich, Jj., concurred.

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