
    Ralph Shropshire, Respondent, v. Julius Frankel, Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Agent cannot recover commissions when transaction fails for causes in which he participates.
    Plaintiff was employed to procure a loan to be secured by mortgage. In the written application for the loan the plaintiff filled in the width of the building as twenty feet and the application was signed by the defendant. A loan was subsequently refused, by persons procured by the plaintiff, on the ground that the premises were less than twenty feet in width.
    Held, as plaintiff was equally responsible with defendant for the failure of the proposed lenders to make the loan a judgment in his favor should be reversed.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, twelfth district, borough of Manhattan, rendered in favor óf the plaintiff.
    Rosin & Eno, for appellant.
    Charles H. Eriedrich, for respondent.
   Freedman, P. J.

This judgment must be reversed. Assuming, as we must, in its determination, that upon all disputed questions of fact the trial judge found the testimony in favor of the plaintiff’s contention to be true, nevertheless he failed to make out a cause of action.

According to the testimony given on the part of the plaintiff he was authorized by the defendant to procure a loan of $12,000, to be secured by a first mortgage, and $1,000 to be secured by a second mortgage upon premises represented and stated by the defendant, in a written application for such loan, to be twenty feet front. This application was dated February 10, 1904, and signed by the defendant Upon the same day defendant was notified by letter from the plaintiff that a client of his office had accepted the loan, and that Messrs. Bowers & Sands would search the title. Subsequently plaintiff and defendant met at the office of Bowers & Sands, and the defendant was there told that Bowers & Sands were the parties who proposed to loan the money, but that upon examination of the title it was found that the premises were but nineteen- feet or nineteen feet and four inches front, and- for that reason Bowers & Sands refused to loan $13,000- upon the property. It was shown by the defendant, without objection, that the written portion of the application was filled in by the plaintiff, and that when the defendant was asked the dimensions of his lot he said On or about, more or less 20 x 106,” and that the plaintiff said, “ We will make it twenty, and he wrote out the application that way.” If, as claimed by the.plaintiff, the refusal to place the loan was because the application made incorrectly stated the exact width of the lot, the plaintiff, who was aware that the defendant at the time he signed such application was uncertain as to the exact dimensions of the lot, was equally at fault with the defendant in not disclosing such situation to the proposed lenders, and for their refusal to make the loan must be held equally responsible with the defendant. See Crasto v. White, 52 Hun, 475; Chambers v. Ackley, N. Y. L. J., June 24, 1903, p. 1210.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event.

Bischoff and Gildersleeve, JJ., concur.

Judgment reversed. New trial ordered,, with costs to appellant to abide event.  