
    Samuel Kutay, Respondent, v. Frieda Otner, Appellant.
   Action by plaintiff, a real estate broker, to recover a commission alleged to be-due for services in obtaining a purchaser for real property owned by defendant. At the close of the case a verdict was directed for the plaintiff. The defendant appeals, by permission, from an order of the Appellate Term which affirmed the judgment entered in the trial court in favor of the plaintiff upon the direction of the verdict. Order of the Appellate Term reversed on the law, judgment of the Municipal Court vacated, and a new trial ordered, with costs in this court and in the Appellate Term to abide the event. The trial court erred in excluding the testimony offered by the defendant to show that before the execution of the contract of sale there was an oral agreement between the plaintiff and defendant whereby the payment of the commission was made conditional upon the closing of the title. The defendant, so far as the plaintiff is concerned, was not concluded by the statement in the contract with the purchaser that the plaintiff brought about the sale, et cetera. (Folinsbee v. Sawyer, 157 N. Y. 196.) The record establishes that the purchaser refused to complete and the title never passed. Hagarty, Acting, P. J., Carswell, Adel, Lewis and Aid-rich, JJ., concur.  