
    Gladys Mills, Respondent, v. 630 Park Associates et al., Appellants.
    Supreme Court, Appellate Term, First Department,
    December 11, 1958.
    
      
      Samuel Mezansky for 630 Park Associates, appellant.
    
      Sohn £ Okin (Louis Okin of counsel), for Douglas L. Elliman & Co., Inc., appellant.
    
      Howard Hilton Spellman for respondent.
   Per Curiam.

It plainly appears from this record that the purchaser obtained by plaintiff repudiated her offer to buy the apartment and indeed plaintiff so testified.

The admission, made during proper cross-examination of plaintiff, as an adverse party, on a crucial issue of the case, was sufficient to nonsuit her.

Despite an agreement between a buyer and a seller upon a sale, a broker cannot recover commission where the customer procured by him recedes from a willingness to buy”. (Wiesenberger v. Mayers, 281 App. Div. 171.)

Under the circumstances, the complaint should have been dismissed on the merits and it follows that there is no support whatever for the judgment in plaintiff’s favor.

The judgment should be reversed, with $15 costs to each defendant, and complaint dismissed, with costs.

Concur — Heoht, J. P., Steuer and Tilzee, JJ.

Judgment reversed, etc.  