
    WOOLLEY v. LOEWENSTEIN et al.
    (Supreme Court, General Term, Second Department.
    December 10, 1894.)
    Factors and Brokers—Commissions—Proof of Performance.
    In an action by a broker for commissions for procuring a purchaser able and willing to perform, a statement made by the proposed purchaser at the time of accepting the offer is admissible, and the broker Is not concluded by such purchaser’s testimony given on the trial.
    Appeal from circuit court, Kings county.
    Action by Milton T. Woolley against Charles Loewenstein and another to recover broker’s commissions. From a judgment entered on a verdict in favor of plaintiff, defendants appeal.
    Reversed.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    Daniel Seymour (F. E. Dana, of counsel), for appellants.
    M. F. McGoldrick and Geo. H. Harman, for respondent
   CULLEN, J.

This is an appeal from a judgment entered upon a verdict at circuit, and an order denying defendants’ motion for a new trial. The action is brought by the plaintiff to recover for services rendered as a real-estate broker. His testimony was to the effect that he was employed by the defendants to effect an exchange of certain vacant lots in Hew York City; that in pursuance of such employment he entered into negotiations with one Wronkow for an exchange of the lots for a building on State street; that the defendants made an offer of the terms on which they would trade with Wronkow; that finally he induced Wronkow to accept such terms, and notified the defendants of the acceptance of their offer; and that thereupon the defendants retracted their offer, and refused to execute a contract, or proceed further in the exchange. These facts, if proved,—and the jury have so found by their verdict,—would entitle the plaintiff to recover, provided Wronkow was at the time able and willing to make the exchange. The statement of Wronkow, accepting the proposed terms of exchange, was properly admitted in evidence; and we do not think that the plaintiff was limited to proving such willingness solely by the testimony of Wronkow, or that he was concluded by Wronkow’s testimony on that point given on the trial. But, to entitle the broker to his compensation, he must produce a customer not only willing, but able, to purchase his principal’s property. Condict v. Cowdrey, 139 N. Y. 273, 34 N. E. 781; Gerding v. Haskin, 141 N. Y. 514,36 N. E. 601. The point was distinctly raised by the defendants, on a motion to dismiss the complaint, that there was no evidence to show that Wronkow was the owner of the State street building, or able to convey it. It was necessary for the plaintiff to prove this fact, to entitle himself to a recovery. We have looked through the evidence, and find the case barren of proof on this point. We therefore feel constrained to reverse the judgment. The judgment and order denying new trial should be reversed, and a new trial ordered; costs to abide event. All concur.  