
    Tobias Goodman, Doing Business as the Goodman Realty Company, Respondent, v. Charlotte Reinowitz, Appellant.
    (Supreme Court, Appellate Term,
    October, 1905.)
    Evidence — Parol evidence to explain writing — Establishing rights of person not a party — Admissions — Scope of and evidence explanatory.
    Parol evidence is competent to explain an admission in a preliminary writing contemplating a sale of real estate, no formal contract being executed, that, a third person, not a party thereto, is entitled to a certain commission upon the sale of the property.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury in the City Court of the city of New York, and also from an order denying a motion for a new trial.
    Paul Hellinger (Henry 0. Burnstine, of counsel), for appellant.
    Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for respondent.
   Fitzgerald, J.

Plaintiff, a real estate broker, was employed by defendant to effect the sale of certain premises in the borough of the Bronx. The evidence of his employment presented upon the trial was a written authorization, containing a promise to pay the usual commission. A proposed purchaser was procured through his efforts, and, after some preliminary negotiations, the following paper was drawn up and signed: “ Received from Mr. Jacob L. Lissner, the sum of one hundred dollars ($100), as párt payment of purchase-price on house and lot known as 3905 and 3907 Third Avenue, borough of Bronx, city of New York. Purchase-price $59,000. Subject to the following conditions: First, mortgage of $32,500, at 4-¿^, about three years to run. A. second morgage of $13,500 at 6$, also three years to run, subject to a third mortgage of $1,000, or purchase money mortgage, due Oct. 1, 1905, at 6$ per annum. The balance in cash, of which $1,900 more is to be paid upon the signing of contract, on Tuesday, the 25th inst., at the office of Davis & Kaufman, 49 Chambers street, at 11 A. M. Title to be taken on or before June 1,1905. The Goodman Realty Co., are the brokers in this transaction, and are entitled to three hundred dollars ($300) commission.

“ Charlotte Reinowitz,
“ Per M. L. Sage,
“Atiy. in fací.
Jacob L. Lissner.”

The transaction, for some unexplained reason, was not consummated; the formal contract of purchase and sale was never executed, and it was admitted by the vendee that the payment of one hundred dollars, referred to in the receipt, was made by check, the payment of which was stopped, and xhe check has never been paid. The agreement to pay plaintiff’s commissions was also in writing and this promise (contained in the authorization given him at the time of his employment), was “ to pay the usual commission.” No direct evidence was given, upon the trial, as to what the usual commissions of real estate brokers are; but there is testimony from which it may be reasonably inferred that the ordinary commissions, in such cases, are one per cent, on the agreed price, which, in this instance, was $59,000. Some conversation was had about the commission at the time of the execution of the tentative agreement, and the insertion therein of the words “ three hundred dollars ” points very strongly to some fresh understanding between the parties to this suit upon the subject.

Assuming, then, that the tentative writing, relied upon as proof of the sale of the property, sufficiently recites all the terms necessary to be expressed in the contemplated formal instrument, and that it is mutually binding between the parties thereto, the plaintiff was not one of those parties. All that can be claimed for it, in so far as he is concerned, is that it is an admission that his compensation is fixed at the sum of three hundred dollars. It may well be that some arrangement was arrived at by which, in addition to the reduction of the amount which otherwise might be claimed, it was also the understanding that payment was conditional upon the execution of the formal contract. Such was the manifest tendency of the evidence sought to be brought out by the excluded questions, the objections to which were sustained upon the ground that parol evidence was not admissible to vary a writing. The proposed evidence did not constitute an attempt to contradict or vary the writing; its effect .at most was only to explain an admission therein in favor of a third party.

“ A statement of fact contained in a contract, but forming no part of the contract, may be contradicted by parol evidence.” 17 Cye. 708.

Judgment and order reversed and new trial ordered, with costs to appellant, to abide event.

Scott and Bis choke, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant, to abide event.  