
    Magdalena Rohkohl, Appellant, v. William S. Sussman, Respondent.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Brokers — Compensation: Performance of duty by broker — Mutual assent as to terms of bargain: Agreements as to compensation — Agreement after commission earned — Want of consideration.
    Consideration — Consideration for particular agreements — Consideration for modification of contract or new agreement."
    A broker employed to effect an exchange of lands is entitled to his commissions when he has brought the parties to an agreement as to the exchange; and the broker’s subsequent agreement, upon receiving a portion of his commissions, to return the same in ease the title to the lands did not pass, is without consideration and unenforceable.
    
      Where, in an action against the broker to recover the amount paid to him, it appears that he acted for both parties to the exchange, plaintiff, who knew the fact, cannot withhold payment of the balance of the commission.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, sixth district, borough of Manhattan, dismissing the complaint and awarding judgment in favor of the defendant upon a counterclaim contained in the answer, after a trial before the court without a jury-
    Leon Kronfeld, for appellant.
    David. J. Gallert (Alfred A. Walter and Walter S. Heilborn, of counsel), for respondent.
   Geigerich, J.

The action is to recover the sum of fifty dollars paid by the plaintiff to the defendant, who did business under the name and style of William S. Sussman & Company, as part of his brokerage for effecting an exchange of lands, but claimed by the former to have been paid upon the agreement that it was to be returned if title to such lands should fail to pass. Title thereto did not pass.

The defendant claims that he was employed as a broker in the transaction, and that the reasonable value of his services was one hundred and forty dollars; that this sum was earned when he brought the parties to an agreement, and that, although he thereafter agreed to wait until title was closed for the balance of his brokerage and to return the fifty dollars so received if title was not passed, such agreement was wholly without consideration. He accordingly counterclaimed for ninety dollars, the difference between the said sums of one hundred and forty dollars and fifty dollars.

The trial justice dismissed the complaint and awarded the defendant fifty dollars and his counterclaim, and the plaintiff has appealed to this court.

At the trial, the plaintiff rested her case upon the introduction in evidence of the agreement between the parties, which was marked exhibit “ I,” and which reads as follows:

“In consideration of the sum of one ($1) dollar and other good and valuable considerations and of entering into the . agreement of exchange of the premises hereinafter mentioned, W. S. Sussman & Co. do hereby agree with Magdalena Rohkohl and warrant that they are the only brokers who have brought about the exchange of her property on 137th street, borough of The Bronx, city of ¡ÜSTew York, for property of Ida Krauss on 168th street in said borough and city, the contract for said exchange having this day been executed; and the said Magdalena Rohkohl does hereby agree to pay to said W. S. Sussman & Co. the sum of one hundred ($100') dollars for procuring said exchange if and when the deeds of said property shall be delivered, as agreed in said contract of exchange; and the said Sussman & Go. further agree that they shall not be entitled to the payment for any services in case the said deeds are not executed and delivered as agreed in said contract.
“And the said Sussman & C'o. further agree that the said sum of one hundred dollars shall be in full- payment of all commissions and brokerage on such exchange.
“ Dated this 12th day of February, 1908.
“W. S. Sussman & Oo.,
“ By W; S. Sussman.”

The defendant also signed the following receipt when the . fifty dollars was paid to him by the plaintiff, viz.:

“ Received on account of the above the sum of fifty dollars, the same to be returned in case title is not passed on the property described above.
“ W. S'. Sussman & Oo.,
“ By W. S. Sussman.”

The plaintiff contended upon the trial that such agreement (exhibit I) was signed simultaneously with the contract of exchange (defendant’s exhibit “A”), but the defendant insisted that it was afterward.

Whatever conflict of testimony there may have been upon the subject was resolved in defendant’s favor, as we must assume from the judgment rendered.

As the defendant earned his commission when the contract of exchange was executed, and nothing further remained to be done on his part (Meltzer v. Straus, decided at the present term of this court), there was no consideration for the agreement above set forth (exhibit I). Tannbenblatt v. Galewski, 108 N. Y. Supp. 588, 589, and cases there cited.

It is urged by the defendant, however, that such agreement expresses a consideration other than that of entering into the contract of exchange,” viz.: “ the sum of one ($1) dollar and other good and valuable considerations,” and that there was no evidence that such consideration did not pass.

Although there is not direct evidence upon the point, the circumstances surrounding the transaction, which were fully inquired into upon the trial, fairly warrant the inference that no such consideration was given, especially in view of the absence of proof that any consideration whatever passed. Fargis v. Walton, 107 N. Y. 398, 402.

There was no question raised upon the trial as to the employment of the defendant by the plaintiff. Ho motions were made when the plaintiff rested or at the close of the whole case; and the question of the defect of evidence on this point cannot be raised for the first time on appeal. Bevins & Rogers App. Ct. Pr., 74, 79, and cases there cited.

But, if the question could be raised, the record discloses ample proof of such employment.

The fact that the defendant acted as a broker for the other party to the exchange appears to have been known to the plaintiff; and the latter cannot, therefore, withhold the payment of the balance of his commission on this ground. Tieck v. McKenna, 115 App. Div. 701.

The judgment should therefore be affirmed, with costs.

Hendrick and Ford, JJ. concur.

Judgment affirmed, with costs.  