
    John H. Cusack, Appellant, v. Walter M. Aikman, Respondent.
    
      Beal estate broker — when his commissions are earned.
    
    A broker employed to secure a purchaser of real estate, who procures a customer to whom his employer agrees to sell such real estate, is entitled to recover commissions, notwithstanding the fact that thereafter the employer refuses to enter into a formal contract of sale because a building upon the land intended to be conveyed encroaches upon adjoining land.
    Appeal by the plaintiff, John H. Cusack, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, entered on the 17th day of December, 1903.
    
      Clarence B. Campbell, for the appellant.
    
      Edo E. Mercelis, for the respondent.
   Jenks, J.:

The action is for brokerage in procuring a purchaser for the defendant’s real estate.. The evidence establishes the employment of the plaintiff by the defendant. The plaintiff procured a proposed purchaser who examined the premises under the guidance of.' the defendant, and thereafter the purchaser and the defendant agreed upon a sale. The purchaser attended at the time and place named to execute the contract, but the defendant defaulted. His explanation is that he ascertained that his stable encroached four inches upon adjacent vacant land, and that,..therefore, he could not sign the proposed contract.' He testifies that he informed the broker of the defect before the day appointed for the execution of the contract, but after he had agreed upon the sale. The broker testifies that he first learned of the defect on the day set for the closing of the contract. The purchaser testifies that she was first informed of the defect after she had attended to execute the contract, that she then for the first time so refused for the reason that the defendant could not give a clear title, but that she at the time of such refusal offered to execute the contract if the defect was cured. If the sale fell through from a defect in the title of the vendor, nevertheless, the broker, under the circumstances, may recover because he has performed his contract with his principal. (Gilder v. Davis, 137 N. Y. 506.)

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

All concurred.

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