
    VANDERVEER v. SUYDAM.
    (Supreme Court, General Term, Second Department.
    December 10, 1894.)
    Real-Estate Agents—Right to Commission.
    A real-estate agent employed to sell land within a certain time, on certain terms, is entitled to his commissions where he procures a purchaser within the time willing to buy, and communicates that tact to the owner; and the owner, by deferring the meeting with the purchaser until after the time of the agent’s employment has expired, cannot defeat his right.
    
      Appeal from circuit court, Kings county.
    Action l)v Adrian Vanderveer against John Suydam to recot'er broker’s commissions for effecting a sale of real property, Avhich de-' fendant, the OAvner, refused to convey. From a judgment entered on a verdict in favor of plaintiff for §3,241.57 damages and costs, and from an order denying a motion for a neAV trial, defendant appeals.
    Affirmed.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ. .
    J. T. Marean, for appellant.
    EdAvin M. Grout, for respondent.
   BROWN, P. J.

The complaint in this action alleges the employment of the plaintiff by the defendant to procure a purchaser of a farm in the toAvn of Flatbush, Kings county, upon certain specific terms, and that plaintiff procured a purchaser in Mr. Cyrus E. Staples, Avho was ready and willing to purchase the farm on the terms designated. The employment of the plaintiff was not denied by the answer, but it was alleged that the sale of the farm was to-be made subject to a lease thereof for agricultural purposes, and with' a reservation of the homestead so long as defendant’s mother should liAre; and that plaintiff’s employment expired on March 25, 1893. The answer denied that plaintiff procured a purchaser upon the terms aforesaid within the time limited. Upon the issue thus made the parties went to trial, and the disputed questions relating to the terms of 'plaintiff’s employment were settled in his favor by the A7erdict of the jury. It appeared from the plaintiff’s testimony that in February and the early part of March there had been some effort on his part, with the defendant’s consent, to sell the property. Defendant wras willing to sell, but Avould not name a price, and offers of $1,500 and $2,000 per acre had been made and refused. Finally defendant said he would sell for $2,500 per acre, whereupon plaintiff told him that his customer would not come to an agreement unless the offer was. put in writing. Defendant thereupon signed a paper, of which the following is a copy:

“Office of Adrian Vanderveer, Real Estate and Mortgage Loans, Flatbush Avenue, cor. Linden Boulevard.
“Flatbush, L. I., March 20, 1893.
In consideration of the sum of one dollar ($1.00) to me paid, the receipt thereof I hereby acknoAvledge, I agree to sell to A. Vanderveer personally, or to whom he may introduce, the plot of land knoAvn as the ‘Cornelius Suydam Farm,’ situate on the northwest corner of road leading from Flatbush toFlatlands neck and Suydam’s lane, said farm containing about 50 acres, for the sum of twenty-five hundred (2.500) dollars per acre, and I agree to accept the folloAving terms, subject to possession of the homestead on said land: Five thousand dollars in cash on signing agreement, forty per cent, in cash on delivers7 of deed on or before thirty days from date of agreement, and to accept a purchase-money mortgage of sixty per cent, bearing interest at the rate of five per cent, per annum for the balance of the purchase price. This option to expire on Saturday, March 25th, jl893, at twelve o’clock noon.
“John Suydam.”

There was a motion to dismiss the complaint at the close of plaintiff’s testimony upon the ground that a purchaser was not procured before the expiration of the option. This motion was properly denied. The plaintiff and Staples both testified that he (Staples) was ready to take the property upon the terms offered. Staples testified that he agreed with plaintiff to take the property on March 20th or 21st, and to meet defendant at Mr. Lott’s office, and sign the contract; and the plaintiff testified that he communicated that fact to the defendant on the 21st of March, and that defendant agreed to go on the following day to Mr. Lott’s office and close the bargain. If this testimony was true,—and we must, in view of the verdict, assume it to be true,—defendant could not, by deferring his meeting with Staples until after the date fixed in the option, defeat the plaintiff’s recovery. By procuring a purchaser willing to buy the land upon the terms offered, and communicating that fact to defendant, and arranging for a meeting to execute the contract before the option expired, plaintiff had done all that the contract required him to do, and all that it was possible for him to do. The defendant requested the court to charge the jury that “a reservation of the possession of the homestead without any limitation as to the time was equivalent to a reservation of the title.” This was refused, the court saying:

“There is no provision reserving it in that way. * * * I decline to interpret'the contract to the jury. I leave it to them as matter oí fact to say what the arrangement was. The option is simply evidence to be considered by them in determining what the actual parol contract was between the parties.”

There was no error in this ruling. The court had already, at defendant’s request, charged that the option was not the contract between the parties, and there was no claim in the answer that the expression in that paper, “subject to possession of the homestead,” was a reservation of the title to that part of the farm. The claim was that it related to the occupation of the property by defendant’s mother during her life. It was of no importance to the case to determine what the precise legal effect of those words would have been in a deed or contract of sale of the land. The question at issue was, what was the defendant’s contract with the plaintiff? The option expressed the terms upon which a purchaser must take the land. The expression used in relation to the homestead was ambiguous, and it was competent to give evidence that would explain its meaning. The evidence tended to show that defendant did not claim a reservation of title or of possession during even his mother’s life. Staples testified that in his conversation with defendant it was not mentioned that the possession of the homestead should be reserved during the life of defendant’s mother, but only for a designated time. What the terms were, and what was intended by the use of the expression in question, was therefore a fact to be determined by the jury, and not a question of law for the court. The judgment and order must be affirmed. All concur.  