
    George Brand, Appellant, v. Mary E. Nagle, Respondent.
    Second Department,
    November 29, 1907.
    Principal and agent — broker’s action for commissions — effect óf acceptance of purchaser by principal — financial ability .of purchaser immaterial.
    A broker who procures a purchaser for lands with whom the owner executes, a memorandum of the terms of a contract satisfactory to both is entitled to his commissions, al though his principal afterwards refuses to sign a formal contract conforming to the memorandum.
    The principal having accepted the prospective purchaser, and having agreed on the terms of sale,, the broker is not required to prove his financial ability as a condition precedent to the recovery of commissions.
    Miller, o'., dissented.
    Appeal by the plaintiff, George Brand, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 29th day of April, 1907, dismissing the complaint.
    
      Charles S. Aronstam, for the appellant.
    
      John H. Steenwerth, for the respondent.
   Rich, J.:

The plaintiff appeals- from a judgment dismissing his complaint at the close of his evidence on a trial in the Municipal Court. The defendant employed plaintiff to procure a purchaser for real property owned by her in Brooklyn for ¿9,200, agreeing -to pay him for his services $100.' -Subsequently she reduced the sale price to' $9,100, the same commission to be paid if a purchaser was procured. On March 15, 1907, the plaintiff brought the defendant and a. prospective purchaser together, and a satisfactory agreement was made between them for the sale of' the property for $9,100. The vendee paid $25, and the defendant 'signed and delivered the following memorandum: “ March 15, 1907. Deceived from Mrs. Burr the sum of $25.00, being part payment on house 723 Halsey St., the purchase price being 9,100, contract to be signed Mar 16th 1907 when 275.00 dollars more is to be paid. Title to be passed May 1st 1907 when balance above a 3,000 mortgage is to be paid in cash. Mary E. Nagle.” After the delivery of this paper plaintiff prepared a contract conforming with the terms of the memorandum, with which both parties expressed their satisfaction. A discussion arose, however, as to who should pay the water tax, which was a lien upon the property ] defendant refused to sign the contract, and the sale was not consummated. The contract was in strict accord with the memorandum; and the plaintiff having procured a purchaser ready and willing to comply with the terms of the agreement made, to sign the contract and pay the $275 required and agreed to be paid upon its execution, he was entitled to his commission if the purchaser was able to perform ; and the defendant could not, by changing her mind as to the time when title should pass, relieve herself from liability. The minds of the vendor and vendee had met upon all of the material elements of the sale, including the day on which title should pass; and the fact that upon such day the water tax would become a lien upon the property and its payment required by her to place her in a position where she could consummate her contract, did not take from the plaintiff the right to payment of the commission he had earned. (Martin v. Wermann, 107 App. Div. 482; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378.) “If the customer is ready and willing at a specified time and place to enter into an enforceable contract embodying the terms agreed upon, assuming that ho is able to carry it out, the principal cannot defeat a broker’s claim to commissions by refusing to join in the execution.” (Seidman v. Rauner, 51 Misc. Rep. 10.) The authorities cited by the respondent are not in point. They are cases where the purchaser and not the owner defaulted, with the exception of Haase v. Schneider (112 App. Div. 336), the decision in which does not apply to the case at bar, because it rests, upon the fact that no time for passing title had been-agreed upon preliminarily, and when that question came up at. the time of the execution of' the contract the parties were unable to agree, and the court properly held that' the minds of the parties never having met, the broker had not shown himself entitled to commissions. The defendant having accepted the prospective purchaser produced by the plaintiff, the latter -was not. required to prove financial ability upon the trial as a condition precedent to recovery. The defendant’s refusal to perform the agreement which she had entered into with,Mrs. Burr was not placed upon the ground.that the latter was financially unable to perform her proposed contract. , Having accepted th'e purchaser produced by plaintiff and agreed with her for the sale of the property, the defendant refused to perform because Mrs. Burr would' not pay existing taxes upon the property in addition to the agreed-on purchase price.

The question of the financial ability of the prospective purchaser is. not involved, and the judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.

Jenks, Hooker and Gaynor, JJ., concurred ; Miller, J., dissented on the ground that .no enforcible contract was made and hence the broker had to. show the financial responsibility of the proposed purchaser.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. ' ■ - -  