
    Ernest E. Slocum, Respondent, v. Walter M. Ostrander, Appellant.
    First Department,
    December 9, 1910.
    Principal and agent — broker’s action for commissions — facts justifying recovery.
    Where a broker eriiployed' to effect an exchange of lands has procured an enforcible contract executed by his principal, he is entitled to recover his commissions although the contract was never performed and one of .the parties was not in a position to perform it, ■
    Ingbaham, P. J., and Dowling, J., dissented, with memorandum.
    Appeal by the defendant, Walter 3Vf. Ostrander, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric-of the'county of Mew York on the 19tli day of March, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Myles Higgins, for the appellant.
    
      A. Delos Hneeland, for the respondent.
   Milleb, J.:

The defendant entered into an enforcible contract with one Edward H. Ryan to' exchange certain real properties. The plaintiff claims to have been the broker in the transaction and brings this action for commissions. This appeal is from a judgment in his ■ favor entered on a verdict óf the jury.

The questions whether the plaintiff was employed, whether he was the procuring cause of the making of the contract, and whether' there was a contemporary oral agreement, the performance of which Was' a condition precedent to the taking effect Of the written contract, Were questions of fact, and as such were properly submitted to the jury.

The plaintiff then has procured an enforcible contract to be made. It is immaterial that the contract was never performed or that one of the parties was not in a position to perform it. (Alt v. Doscher, 102 App. Div. 344; affd., 186 N. Y. 566; Kalley v. Baker, 132 id. 1.)

The judgment and order should he affirmed, with costs.

McLaughlin and Laúghlin, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.

Ingraham, P. J.

(dissenting):

I do not think that this judgment can he sustained upon the ground that the plaintiff never produced a purchaser ready, able and willing to make the exchange, to recover the commissions for which the action was brought. It is true that the purchaser executed a contract for the exchange of the property of which the purchaser was not the owner, but which he was. to exchange for the defendant’s property, and that was known to the plaintiff and all interested. It was perfectly understood that the purchaser’s power to acquire the property which he was to convey to the defendant depended upon his getting a loan on the property which the defendant was to convey. The actual execution of the contract in the form in which it was executed was made,on the suggestion of the plaintiff, and the verbal agreement that the contract was not to be enforced if the loan was not obtained was, I think, established by a great preponderance of evidence: The defendant has a contract which he cannot enforce. He made no actual sale of his property, and the services rendered for him by the plaintiff were of no possible value to him. This contract could not be specifically enforced because the purchaser did not own the property, and all parties concerned in the transaction knew it. Mor do I think the evidence shows- the value of the defendant’s property upon which an award of commissions could be predicated. There was no specific agreement to pay the commissions, and the plaintiff must. depend upon the implied contract; and I think the evidence fails to establish that he complied with his contract, or that, there was any basis upon which the commissions could be estimated.

I think the judgment should be reversed.

Dowling, J., concurred.

Judgment and order affirmed, with costs.  