
    Adam Buehler, Respondent, v. Louisa Weiffenbach, Appellant.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Heal estate broker — Procuring cause of sale..
    Where a real estáte broker, employed to sell property at a price not fixed by the owner, produces a proposed purchaser, and the owner rejects his offer, does not dismiss the broker, but says that the purchaser . “ must offer more,” and the owner, upon a proposition of purchase made by another broker, at first declines to negotiate with him upon, the ground that the first broker has already brought him a purchaser, but subsequently sells .the property to the person produced by the second broker at the price originally offered by the first proposed purchaser, a ■ state, of facts is’ presented, which sufficiently indicates that the original broker has been, the procuring cause of the cover his ' commissions of the owner. sale, and he is entitled to re-
    
      Appeal by defendant Louisa Weiffenbach from a judgment of the justice of the First District Court in favor of plaintiff. The action was originally brought against Sebastian Weiffenbach and Louisa, this appellant, but the complaint was dismissed as to him without objection, he being concededly the agent of Louisa Weiffenbach, his daughter, who was the owner of the property upon the sale of which commission is claimed.
    George W. Weiffenbach, for appellant.
    John Fennel, for respondent.
   Daly, P. J.

This is an action to recover brokerage upon the sale of defendant’s property, Flo. 524 East Eighty-third street, to one Sanderer for $20,500. The plaintiff claimed that he had been ■employed by Sebastian Weiffenbach, defendant’s authorized agent, to effect a sale, and that he introduced Sanderer and procured him to make the offer of $20,500 which, though" at first refused, was •subsequently accepted, when repeated by another broker.

Plaintiff took Sanderer to see Weiffenbach and make an offer, although those parties had previously had some conversation about .a sale of the premises. At that interview Sanderer offered $20,500 for the first time. Weiffenbach asked $21,500. The offer was subsequently made in a letter from plaintiff to Weiffenbach, who replied that “-Sanderer must offer more.” Weiffenbach, according to plaintiff’s evidence, promised to pay him a commission if he effected a sale. Fío thing further was done after October or FTovemher, until January following, when another broker again repeated Sanderer’s offer, and defendant accepted it.

There is no evidence that Weiffenbach terminated plaintiff’s agency, so as to permit of his dealing directly with plaintiff’s customer and making the sale himself on the latter’s terms, which plaintiff had procured. On the contrary, when a third broker came to Weiffenbach to speak of a sale to Sanderer, Weiffenbach declined to negotiate through him on the ground that another agent who lived in Avenue A had brought Sanderer. This other agent was identified as the plaintiff by the description that he lived in Avenue A. It is plain, therefore, that it was understood at that time, which was about December, that the agency continued and that plaintiff had not abandoned his efforts and defendant had not terminated his authority. The sale to Sanderer was made January 5th following.

This was not a case where the broke: chaser at the price named by his princ: when plaintiff was -at. first authorized to of $21,500 was first mentioned after offered $20,500; and immediately after stating in reply to a repetition of the offer must offer more,” which indicated a his own figure, and required of plaintiff, mission, that the offer must he one whi to plaintiff; if the offer already made p: seem that the commission was earned; al that, if' defendants, after giving plaintiff feet a sale, had given him notice that they would then have been at liberty to purchaser, Sanderer, without being sions. Sibbald v. Bethlehem Iron Works, 83 N. Y. 378. not having terminated plaintiff’s agency, abandoned his efforts, and defendant tomer on the offer procured, by plaint: to commission. liatil ■ha r failed to procure a purdpal. . Bo price was fixed find a customer; the price i customer he brought had that we find him simply in writing that “ Sanderer disposition tó recede from in order to earn his com-oh would ^pr oye satisfactory roved satisfactory, it would .though it cannot he. doubted a reasonable time to efagency was terminated, negotiate directly with the e to plaintiff for commis Defendant and plaintiff not having ,ving closed with the cusiff, the latter was entitled his

Judgment affirmed, with costs.

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  