
    Charles Seymour, Appellant, v. Alexander C. Thompson, Respondent.
    Second Department;
    June 15, 1906.
    Principal and agent — broker’s contract for sale of real estate — when action thereon premature.
    Under an agreement whereby a broker is to receive one-half of any sum over §250 realized by the owner on the sale of a certain lot there can be no recovery when the evidence shows that the owner built a house thereon and afterwards sold the premises for §3,200, §500 of which was paid in cash, the remainder to be paid at the rate of §14' per month, only three of such monthly installments having been paid at the time of the action. The burden was on plaintiff-to show that defendant had received more than §250 for the lot, and conceding the contract to be valid under the terms, the money was not yet due.
    Appeal by tlie ]Dlaintiff, Charles Seymour, from a judgment of the Municipal Court of the city of New York, borough of' Queens, in favor of the defendant, rendered on the 3d day of November, 1905.'
    
      J. Baldwin Hand, for the appellant.
    
      Clarence Edwards, for the respondent.
   Woodward, J.:

The plaintiff seeks to recover under the following. contract or agreement:

This contract made and entered into between A. C. Thompson and Charles Seymour for the sale of lot No. 15. * * , * It is understood and agreed that all over $250 dollars the said. A. C. Thompson gets for said lot, the half of the increase is to be divided with the said Chas. Seymour less expenses.

.“A. C. THOMPSON [seal].”

Just what was contemplated, by this agreement is not very clear, but it would seem to suggest that the plaintiff was to secure a purchaser, for the lot in question had been purchased by the defendant, and the plaintiff had been paid a commission by the vendor for procuring the purchaser. The evidence discloses that the lot, as it stood at the time of the agreement, was never sold. The defendant about a year later constructed a house upon the premises and finally sold the same for $3,200, taking in payment $500 in cash and an agreement on the part of the purchaser to pay,$14 per month, with interest, until the. same was fully paid. It is claimed by the plain-tiff that, this transaction resulted in a profit of over $250 above the agreed price of the premises- and he seeks to recover one-half, of the profits. . It seems to us very doubtful if the plaintiff has any claim against the defendant, whose evidence indicates an actual loss in the transaction after paying expenses, but in- any event, in an action at law he was bound to show that the defendant had received for the. ■ lot more than $250,, and the evidence is undisputed that he lias received only $500 on -account, with three monthly installments of $14 each. By the terms of the contract, conceding it to .be valid, ■ the money is not yet due. Therefore the. judgment in favor of the defendant should be affirmed. ' .

Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  