
    Hattenbach v. Gundersheimer.
    
      (Common Pleas of New York City and County, General Term.
    
    April 6, 1891.)
    Brokers—Right to Commission.
    Defendant agreed in writing to pay plaintiff, a broker, a commission “if he sells my bakery, or sends a party that does buy it. ” Plaintiff produced a purchaser, with whom defendant signed a contract of sale of the 'bakery, and accepted part payment from him; but by reason of defendant insisting that the purchaser should secure the lease of the premises, which was not a term of the contract, the sale was not completed. Held, that defendant was liable to plaintiff for his commission.
    Appeal from seventh district court.
    Action by Isaac Hattenbach against Charles Gundersheimer. Defendant appeals from a judgment for plaintiff.
    Argued before Bisohoff, P. J., and Pryor, J.
    
      Herring & Meyer, for appellant. Langbein <& Langbein, for respondent.
   Pryor, J.

The action is by the broker against the seller to recover a commission “of — per cent, of the selling price, if he sells my bakery, or sends a party that does buy it.” Such, in terms, was the written stipulation of the defendant. The plaintiff produced a purchaser, who did buy, and to whom the defendant did sell, the bakery. The defendant signed the contract of sale, and accepted $100 in part payment, but afterwards refused to carry out the sale, unless the buyer would secure the lease on the premises. This was not a term of the contract, and by insisting on it the defendant was the cause of the miscarriage of the negotiations; but the plaintiff had already fulfilled his engagement by presenting a purchaser who did buy, and to whom defendant did sell, by an agreement obligatory on both parties. It was then too late for defendant to escape liability to plaintiff for his commissions. Geoghegan v. Kelly, 11 N. Y. Supp. 704. The judgment is affirmed.  