
    Julius Bloch, Appellant, v. William Lowe, Respondent.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Brokers — Compensation — Right to compensation — Employment by person sought to be charged.
    Principal and agent — The relation between the parties — Creation and existence — Question for jury.
    In an action by a broker to recover his commissions upon a sale of real estate, where it appears that the broker was employed by the defendant, who was anxious to acquire the property, and ascertained and informed the defendant who owned the property and transmitted to the owner defendant’s offer for the property and reported to defendant the results; that defendant subsequently conducted negotiations with the owner’s agents, paid the purchase price and signed the contract as attorney in fact for' his wife, in whose name the title was taken, though her name was not mentioned in plaintiff’s dealings with the defendant and she was not present at any time, not even when the title was closed, the plaintiff is entitled to have submitted to the jury the question whether (the defendant was not in fact the purchaser and the title was not placed in his wife’s name for his own purposes; and a dismissal of the complaint at the close of the testimony for failure of proof is error.
    Appeal by tbe plaintiff from a judgment of the City Court of the city of New York, in favor of the -defendant, dismissing the complaint. "
    Isaac Cohen, for appellant.
    Semple & Liebeskind (Solon J. Liebeskind, of counsel), for respondent.
   Levehteitt,' J.

This action was brought to recover for services rendered in connection .with tbe purchase of real estate. Tbe defendant, desiring to buy certain lots, employed the plaintiff to ascertain the name of the owner and to enter into negotiations to that end, agreeing to pay for those services in the event that he purchased the property.

Upon the issues raised by the .pleadings the parties went to trial. At the close of the testimony the complaint was dismissed for failure of proof. The reason assigned for this ruling was that the defendant had not purchased the property. The plaintiff’s motion, to have that question submitted to the jury was denied.

The learned judge was led to this conclusion because the defendant’s wife was named as purchaser in the contract for, and the deed of, the property. These instruments were treated as conclusive against the plaintiff’s contention that the defendant was the purchaser. ' This was error.

The record discloses ample evidence in support of the plaintiff’s contention that the defendant was really the purchaser. Hot only did the latter admit in his pleading that he was desirous of acquiring the property, but he testified that he employed the plaintiff; that the plaintiff ascertained and informed him who the owner of the property was; that he made- an offer through the plaintiff who reported to him the results; that his wife was never mentioned in his dealings with the plaintiff; that he subsequently conducted the negotiations with the agents of the owner; that he paid the purchase price; that he signed the contract of purchase as attorney in fact for his wife. It also appears in evidence from other sources that his wife was not present at any time, not eyen when the title was closed, and that the defendant had admitted that he purchased the property. Is the effect of all those facts to be nullified merely because the contract was' made and the deed taken in the name of the wife? Was not the plaintiff entitled to have those facts weighed by the jury as against the inferences to be drawn from the form of the instruments ? It by no means follows that, because the wife’s name was inserted in the contract and deed, she and not her husband w,as the purchaser. On the contrary, the facts developed would justify the conclusion that he had bought in her name; that he had placed the title in her for purposes of his own. If he did so he cannot thereby deprive the plaintiff of his compensation. If he was in fact the purchaser, his liability follows, whatever name may have been inserted in the contract and deed. So, whether he is to be treated as the actual purchaser or as the agent of his wife, an undisclosed principal, the question of his liability was for the jury and not for the court. Konner v. Anderson, 37 Misc. Rep. 511.

The judgment will be reversed and a new trial ordered, with costs to the appellant to abide event.

Gildebsleeve and McCall, JJ., concur.

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