
    B. W. Lougheed & Co., Ltd., Appellant, v. Yone Suzuki et al., Copartners, under the Firm Name of Suzuki & Company, Respondents.
    (Argued October 21, 1926;
    decided November 16, 1926.)
    
      Brokers — commissions — contract — action by ship broker to recover commissions for securing charter party of steamship.
    
    
      Lougheed & Co., Ltd., v. Suzuki, 216 App. Div. 487, affirmed.
    Appeal from a judgment, entered April 30, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing judgment in favor of defendants. The action was to recover commissions as ship broker for securing a charter party for a steamship at defendant’s request. The answer set up as separate defenses, first, that the services were rendered under a contract that plaintiff should receive for its services a percentage of the hire actually paid by the charterer and if none was paid was to receive nothing; second, that it was the custom among ship brokers in the port of New York that under like charter parties commissions were payable only on hire actually received; third, that it was agreed between the parties that in the event of the inability of the defendants for any cause beyond their control to tender the vessel to the charterer before the cancellation date, and the charterer refused to accept delivery, the plaintiff should be entitled to no compensation for its services; that the defendants were unable to tender the vessel to the charterer prior to the cancellation date named in the charter and that the non-delivery of the vessel to the charterer before December 11, 1919, was not due to the negligence, default or any act of the defendants, and that, therefore, no commissions were due.
    Judgment affirmed, with costs;
    
      Frank W. Chambers, Alfred H. Townley and Henry Siegrist for appellant.
    
      George C. Sprague and H. Victor Crawford for respondents.
   no opinion.

■ Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  