
    Archibald Charles, Appellant, v. Henry A. Cook and Elizabeth Cook, Respondents.
    
      Commissions of a real estate agent — when earned.
    
    In. the absence of an express agreement to the contrary, a real estate broker ■employed to effect an exchange of real estate is entitled to his commissions, where, through his procurement, a contract for the exchange of properties has been agreed upon and entered into between his customer and the person with whom the exchange was to be effected, notwithstanding the fact that one of the parties is unable to fulfill the contract.
    Appeal by the plaintiff, Archibald Charles, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, entered on the 15th day of June, 1903.
    
      James O. Vam, Siclen, for the appellant.
    
      George S. Billings, for the respondents.
   Woodward, J.:

The defendant Henry A. Cook employed the plaintiff, a broker, to effect for him an exchange of real estate, and as a result of the plaintiff’s efforts a written contract was entered into on March 31, 1903, between the said defendant, the defendant Elizabeth Cook, his wife, and one Travis F. Jones, whereby it was agreed that the defendants should exchange a certain fiat house situated on Washington avenue, Brooklyn, for a farm owned by the said Jones in the State of Illinois. The contract contained this provision: “ It being, further understood and agreed that the party of the first part (the defendants) shall have until April 6th, 1903, to inquire about the Illinois property, and shall accept or reject this contract by April 6th, 1903, or. it shall be in full force and binding to both parties-hereto.” About the 1st of April, 1903, the defendant Henry A. Cook went to Fairfield, 111., where the farm offered by J ones was situated, and inspected the property. On April 6,1903, he telegraphed the plaintiff from that place : “ Accept exchange of Washington Ave. for Illinois farm.” On the same, day a similar telegram was also sent to. and received by Jones; and the plaintiff on that-day personally informed Jones that he had received a telegram accepting the contract. This was a sufficient acceptance under the-contract, and was recognized as such by the defendant Elizabeth Cook, when she executed with her husband a deed of the property to Jones. The execution of the contract for the' exchange of the properties by the defendant Elizabeth Cook, with full knowledge of the facts, operated as a ratification of the acts of the plaintiff. It appears that Jones failed to fulfill his part of the contract, but that fact does not affect the rights of the parties to this action as between themselves. When a'valid contract was entered into between Jones- and the defendants, the plaintiff’s commissions were earned. The rule governing transactions of this kind between a broker- and his client is well’ stated in Norton v. Genesee National Savings Assn. (57 App. Div. 520, 522). “ The ordinary rule,” says Hr. Justice Lattghliit, writing the opinion in that case, “ is-that, in the absencé of an express agreement to the contrary, a real estate broker employed to effect an exchange of real estate is entitled to his commissions, where, through his procurement," a contract for the exchange of properties has been agreed upon and entered into between' his customer and the person with whom the exchange was to be effected, even-though one of the parties be unable, to fulfill the contract.” To the same effect are Kalley v. Baker (132 N. Y. 1). Gilder v. Davis (137 id. 504); Inge v. McCreery (60 App. Div. 557); Brown v. Grassman (53 id. 640); Baumann v. Nevins (52 id. 290). The contract between the parties to this action was the ordinary one to effect an exchange, with no agreement,, express or implied, to execute, or carry to a consummation, by actual transfer of properties, an executory contract. (Inge v. McCreery and Norton v. Genesee National Savings Assn., supra.)

There are no peculiar circumstances to deprive the plaintiff of the benefit of the general rule, and it follows that he was entitled to judgment upon proof of the facts above narrated. The trial court, therefore, erred in dismissing the complaint, and the judgment should be reversed and a new trial ordered.

Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.  