
    Nathan Putter, Respondent, v. Charles Berger, Appellant.
    
      Beal estate agent’s commissions—when earned — not lost by the owner’s inability to give immediate possession and the consequent failure to sell.
    
    A broker employed to negotiate a- sale oí real estate, who brings to his employer a responsible purchaser, willing to buy upon the terms prescribed, is entitled to commissions.
    Where the employer informs the broker that he can give immediate possession of ■ the property to a- purchaser, the fact that owing to the incorrectness of this representation a customer produced by the broker refuses to complete the purchase will, not deprive the broker Of his right to commissions. ‘
    Appeal by the defendant, Charles Berger, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of February, 1904.
    
      Charles G. F. Wahle, for the appellant.
    
      Loren N. Wood, for the respondent.
   Per Curiam:

The general rule is that where the broker employed to negotiate a sale of real estate brings to his employer a responsible purchaser, willing to buy upon the terms prescribed, he has earned his commissions. (Barnard v. Monnot, 3 Keyes, 203; Brady v. Foster, 72 App. Div. 416; McQuillen v. Carpenter, Id. 595 ; Gilder v. Davis, 137 N. Y. 504, and cases cited.) The evidehce, offered in behalf of the plaintiff in this action to recover commissions for the sale of real estate which the plaintiff owned, tended to establish the defendant’s liability under this doctrine. The defendant gave the plaintiff a written so-called authorization to sell his property, subscribed by him. In the description of the property contained in that writing the defendant stated that the possession of the property might be had at once, and that he wished to receive the price of $23,000. The plaintiff, after mating several efforts extending over á number of months to sell the property, told the defendant that the price was too high and could not be obtained, and that he had a customer who would pay $22,000. The defendant replied that he would like to meet the customer and they would come to an agreement on the price. The plaintiff brought the defendant and intending purchaser together, and they did, after a short conversation, agree upon a price of $22,500. It then appeared, and there was some evidence indicating that the plaintiff knew of its existence before, that the property was under lease by the defendant, and-that the lease had four and one-half years to run. The intending purchaser stated that he wished immediate possession, and both plaintiff and the purchaser testified on the .trial that defendant said he would obtain possession at once from the lessee, who was a friend of his and a nice man, and that he would obtain a cancellation of the lease and pay whatever the lessee demanded. It is true that this was denied by the defendant, but this conflicting evidence presented a question of fact for the justice before whom the case was tried to determine, and we are not disposed to interfere with his conclusion. The lessee, it later developed, wished more money than the defendant was willing to give, and because of that defendant was unable to give possession to the intending purchaser, and the deal fell through. The plaintiff, however, earned his commissions, and the judgment in his favor should be affirmed, for he produced the purchaser who was willing to take the premises on the terms outlined by the owner, and that he was able to complete the pur-, chase is not denied and is supported by the evidence.

The judgment should be affirmed, with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.  