
    Eugene F. Southwick, Appellant, v. Mary Swavienski, Respondent.
    Fourth Department,
    July 12, 1906.
    Principal and agent — when real estate broker entitled to commissions although sale is made by owner on different terms.
    When a real estate broker into whose hands property is put for sale is the procuring cause of a sale, it is immaterial at what time the conveyance is made, or whether the owner took the matter into his own hands.
    Although the original contract with the broker provided for a sale part for cash, with a purchase-money mortgage for the balance, if the broker procures the customer he is entitled to commissions although on the dual sale made by the owner lands are accepted in exchange.
    Appeal by the plaintiff, Eugene F. Southwick, from a judgment of the County Court of Chautauqua county in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 8th day of January, 1906, affirming a judgment of a justice of the peace of the town of Dunkirk.
    
      Robert J. Cooper, for the appellant.
    
      Leslie A. Pease, for the respondent.
   Nash, J.:

The facts are undisputed. The plaintiff entered into an agreement in writing with the defendant on the 20th day of July, 1903, by the terms, of which the defendant agreed to place in the hands of the plaintiff premises situate in the city of Dunkirk for sale at the price of $2,800 upon the following terms: $800 cash and a mortgage back for the balance, the defendant to pay the plaintiff “ upon a sale being negotiated 2|- per cent as his commissions in full for all his services and expenses connected therewith,” the contract to continue in force one year. The plaintiff to “ be entitled „to his commissions as above mentioned upon said property, if said property is sold during said year by second party (defendant) or any other person.”

The plaintiff was engaged in showing the property to people, advertising it in two newspapers for about ten months. In the month of May before the expiration of the year, the plaintiff called the attention of Reuben W. Wright to the "property, and on th'e twenty-fifth of the same month Wright agreed to purchase the property by exchanging for it other property; consideration, $2,800, all of the arrangements for the exchange being made with Wright, by the husband of the defendant, the defendant claiming that she had no knowledge of the agreement made by her (husband with Wright.

On August 10, 1904, the defendant conveyed the premises to Wright by her deed, reciting a consideration of one dollar, executed acknowledged and delivered on that day.

On a day prior to the day of the conveyance, Wright says he went to Mr. Swavienski’s home and “left word for him with Mary to come and see me, and we met and made the exchange.”

The defendant’s contention is that the plaintiff “ failed to produce a purchaser ready and willing to purchase according to the terms of the contract, and that the property was sold on terms entirely different from those stated in the contract, after its expiration.”

The plaintiff procured a purchaser who made an agreement for the purchase of the premises within the year, resulting in a sale and conveyance; although after the expiration of the year, and although upon terms other than those originally proposed, the plaintiff is entitled to his commissions.

A deviation of the terms agreed on with a broker does not defeat his right to commissions. (Levy v. Coogan, 16 Daly, 137; Gold v. Serrell, 6 Misc. Rep. 124.) To entitle a broker to compensation it is sufficient that a sale be effected through his agency as its procuring cause; and if his communications with the purchaser are the means of bringing him and the owner together, and the sale results in consequence, the compensation is earned. It is not necessary that the purchaser be made known to the owner as the broker’s customer, if he is so in fact. (Lloyd v. Matthews, 51 N. Y. 124; Hanford v. Shapter, 4 Daly, 243.) Where the broker is the procuring cause of the sale it is immaterial when the conveyance is made. (Mooney v. Elder, 56 N. Y. 238, 241.) Where the communications of a real estate broker with a purchaser are the means of bringing him and the owner together and a sale results in consequence, the broker is entitled to commissions, nor can he be deprived of them by the action of the owner in subsequently taking the matter into his own hands. (Hobbs v. Edgar, 23 Misc. Rep. 618.)

The judgment of the County Court and of the Justice’s Court should be reversed.

All concurred.

Judgments of County and Justice’s Courts reversed, with costs to the appellant in all courts.  