
    Salvatore Scarpati & Son, Respondent, v. James McNaughton and Another, Appellants.
    Supreme Court, Appellate Term, Second Department,
    January 29, 1925.
    Brokers — real estate broker — action for commissions — charge that plaintiff could not recover unless jury found purchaser was willing to pay certain sum, reversible error — refusal to charge that purchaser had to be able to buy was error.
    It was reversible error for the trial court to charge the jury, in an action for commissions, that the plaintiff could not recover unless they found that the purchaser was willing to pay a certain sum, where there is nothing in the record to show that the prospective buyer agreed to pay said sum. It was error to refuse to charge that the purchaser had to be able, as well as ready and willing to buy.
    Appeal from a judgment and order of the Municipal Court, Borough of Brooklyn, Fifth District.
    
      Cornelius Furgueson, Jr., for the appellants.
    
      Bernard Noskin, for the respondent.
   Per Curiam:

Judgment and order unanimously reversed upon the law and new trial granted, with thirty dollars costs to appellants to abide the event.

It was error for the court to charge that plaintiff was entitled to commission if it was employed to find a purchaser and found one who was ready and willing to buy upon defendants’ terms. So, likewise, it was error to refuse to charge the request made by defendants’ counsel that the purchaser had to be able, as well as ready and willing to buy. Respondent’s counsel concedes this to have been error. Moreover, there is nothing in the record to show that the buyer ever agreed to pay $8,750. There is proof that plaintiff’s salesman told one of the defendants that the buyer would pay that sum, but that was not proof of the fact that he was willing to pay it, or had ever agreed to do so. The court charged the jury that the plaintiff could not recover unless they found that the purchaser was willing to pay $8,750. Perhaps on a retrial the facts showing how the sale actually came to be made may be more fully presented.

Present: Cropsey, Lazansky and MacCrate, JJ.  