
    E. Osborne Smith, Inc., Respondent, v. University Finance Co., Inc., and Another, Appellants.
    First Department,
    December 7, 1928.
    
      Bernard Gordon, for the appellants.
    
      Branch P. Kerfoot of counsel [Frederic H. McCoun, attorney], for the respondent.
   Per Curiam.

The crucial question in this case was whether the deal failed of consummation because the purchasers changed their minds or because the seller refused to proceed. If the buyers refused to proceed before a written contract was executed, the broker had not produced a customer who was ready, able and willing to buy. Instead of presenting that issue to the jury, the court charged: “ If at the meeting between Mr. Billingsley and Mr. Ennis the buyer and seller agreed with each other as to the purchase and sale, no matter what caused it to fall through after that, the broker’s commission was earned.” This constituted error which requires reversal.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Present — Dowling, P. J., Merrell, Martin, O’Malley and Proskauer, JJ.

Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.  