
    Eugene Bouscher, Resp’t, v. Charles D. Larkins, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1895.)
    
    Broker—Commission.
    _ A broker who abandons the trade or relinquishes his efforts, is not entitled to commission, though the owner subsequently makes a sale to a-person whom the broker has introduced.
    Appeal from an order granting a motion to dismiss the complaint, and from the judgment entered on such order.
    
      George D. Beatty, for app’lt; Warner & Terry, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial. The action was brought by an assignee of a real estate-broker to recover commissions for the sole benefit of the assignor, who claimed to have earned the commissions by effecting an exchange of property belonging to the defendant with one Burr Wilson. It appeared in evidence that the assignor, one Swartz, was-employed by the defendant as a broker, and that be attempted to negotiate a trade with one Reynolds of the farm of the defendant, situated in Saratoga, for two houses which did not belong to-Reynolds, and also for some other property in Hew York City ; but said negotiations never resulted in a trade. Indeed, Reynolds refused all offers made by defendant; and Swartz, although requested by the defendant, refused to negotiate further, and abandoned the matter, and it was declared off The defendant after-wards learned from Reynolds that one Burr Wilson had become owner of the Lewis Aven.ue houses, and opened negotiations with him, and effected a trade. Swartz had nothing to do with this-last trade, and, so far as appears, did not know Wilson, or of any negotiations between him and the defendant. The decided weight of evidence upon the question whether the trade was entirely abandoned, and Swartz refused to go further with Reynolds or Haskis, the original parties with whom negotiations had been carried on, is to the effect that it was abandoned and declared off. The said Swartz did, however, attempt to secure some new parties who owned property in the city of Hew York, but no result was obtained therefrom. The well-settled rule is, if a broker abandons the trade or relinquishes his efforts, the principal is not precluded irom negotiating with any person whom the broker has introduced ; the broker is not entitled to commission. Wylie v. Marine Nat. Bank, 61 N. Y. 415; Sibbald v. Bethlehem Iron Co., 83 id. 378; Hay v. Platt, 66 Hun, 488 ; 50 St. Rep. 158. We also think that the evidence was in favor of $250, instead of $500, as the amount of commission Swartz was to receive in case he effected a sale.

If these views are correct, it follows that the judgment must be set aside, and a new trial granted.

All concur.  