
    William Holman, Respondent, v. Walter R. Patten, Appellant.
    First Department,
    December 30, 1915.
    Principal and agent—action .by broker for commissions on loan — when title unmarketable — effect of right of city to new trial of issues in action in ejectment affecting premises.
    Where, in an action to recover broker’s commissions on the amount of a loan claimed to have been obtained for the defendant, upon a written agreement providing that the borrower was to furnish a policy of title insurance showing that the applicant’s title was marketable, it appeared that the title company was willing to issue a policy with the exception as to “ Outstanding title of the City of New York to any land lying east of the original high water mark of the Harlem River; ”_that the plaintiff made no attempt to establish that any part of the land to be mortgaged lay east of the original line of the high-water mark; that a judgment in an action in ejectment by the city affecting the premises in question had been entered dismissing the complaint, and that the city had an absolute right any time within three years to have the judgment vacated and a new trial of the issues, the complaint should be dismissed because the failure to complete the agreement was not the fault of the defendant.
    The right of the city to a new trial did not render the title unmarketable.
    Appeal by the defendant, Walter R. Patten, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 30th day of June, 1915, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of June, 1915, denying defendant’s motion to dismiss the complaint.
    
      Howard C. Taylor of counsel [Deyo & Bauerdorf, attorneys], for the appellant.
    
      Harold E. Lippincott, for the respondent.
   Clarke, J.:

The action was to recover a broker’s commission of eight and one-half per cent on the amount of a loan of $25,000, claimed to have been obtained for the defendant upon a written agreement as to the payment of said brokerage fees and for disbursements made in connection therewith. The loan was to he made on the undivided one-half interest in property owned by the defendant situated on the block between East One Hundred and Twenty-second and East One Hundred and Twenty-third streets abutting on the East river. The loan agreement provided that the borrower was to furnish policy of title insurance from one of two named title insurance companies, showing that applicant’s title was a marketable one, and that this loan was a first lien on his one-half interest.

The sole question is in regard to that provision. The title company'gave as an objection to the title: “F. Outstanding title of the City of New York to any land lying east of the original high water mark of the Harlem River.” It did not refuse to issue a policy, but was willing to do so with that exception. The court gave judgment for the plaintiff upon the ground that although the record disclosed a suit in ejectment by the city affecting the premises in question in which judgment had been entered for the defendant dismissing the complaint, nevertheless, as under the then existing section 1525 of the Code of Civil Procedure, the city had an absolute right at any time within three years to have the judgment vacated and a new trial of the issues (Laws of 1880, chap. 178; rep. by Laws of 1911, chap. 509), it was a pending suit and, therefore, the defendant was not in a position to make good. Therefore, it held that the broker had done the work; that the failure to complete was the fault of the defendant and plaintiff was entitled to recover.

. In the ejectment suit, which was commenced in 1888 and brought to trial in 1907, the referee found that the boundary separating the easterly line of Patten’s land from the Harlem river “is a solid stone bulkhead which has existed practically on its present line and in its present condition at least since May 7th, 1849; ” that none of the land westerly from said bulkhead was in the tideway of the Harlem river and that the original line of high water in front of said premises was easterly from said bulkhead. Judgment in said action was entered against the city dismissing the complaint on the merits, with costs in favor of defendants in the sum of $3,817.75. The city did not appeal and the judgment was paid on March 10, 1911. The respondent herein made no attempt to establish that any part of the land to be mortgaged lay east of the original line of the high-water mark, although that was the only objection contained in the report of the title company which was considered of any consequence.

It seems to me that plaintiff failed to make out a case in that the person he produced refused to make the loan, although the title was good, and that the specific ground of the action of the court below was not well taken. In Haffey v. Lynch (143 N. Y. at p. 248) Judge Earl said: “The ejectment suit had finally resulted in favor of the defendant. * * * The fact that Jarvis could have paid the costs and taken a new trial under the statute is of no importance. There was final judgment against him, and the contingency that he might take a new trial is of no more importance than the contingency that some 'other person might at some time commence an action to recover the same land.”

It follows that the judgment should be reversed and the complaint dismissed, with costs and disbursements to the appellant.

Ingraham, P. J., Laughlin, Dowling and Smith, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs.  