
    Edward Michaelis and Emil M. Michaelis, Respondents, v. Charles Gahren, Appellant.
    
      Broker — he is entitled to his commissions, if, although the matter was delayed, he continued to he the procuring cause of the sale.
    
    A broker is entitled to his commissions upon a sale of real estate, although the the matter was not concluded at the time contemplated by the parties in the first instance, if it appears that the transaction was never abandoned, and that, although it was not perfected until after the expiration of two years, the broker still retained his relation to the transaction, and that the delays resulted from legal proceedings taken in the meantime, with a view to curing defects in the title which became known when the parties met to complete the contract in the first instance.
    Appeal by the defendant, Charles Gahren, from a judgment of "the Court of Common Pleas for the city and county of Hew York an favor of the plaintiffs, entered in the office of the clerk of the county of Yew York on the 9th day of Décember, 1895, upon the verdict, of a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 11th day of December, 1895, denying the defendant’s motion for a new trial made- Upon the minutes. .
    
      Robert E. Deyo, for the appellant.
    
      Christopher Fine, for the respondents.
   Patterson,, J.:

. The plaintiffs sued in the Court of Common' Pleas to recover the value of sei’vices alleged,to have been rendered by them as real estate brokers to the defendant. They had a verdict* from the judgment entered upon which, and from an order denying a motion for new trial,, this appeal is taken. - .

The employment of the plaintiffs and the rendition of some service pursuant to- that employment were proven beyond dispute. It was shown that Mr. Galiren, being desirous of purchasing the property mentioned in the complaint, authorized- the plaintiffs to enter into relations with one Flanagan, who was the agent of. the owners,, and to negotiate with him for the purchase, of the lots,, and that, after several efforts made by one of the plaintiffs, the defendant and Flanav gan were brought to accord, respecting the terms of a contract * that a memorandum was made of those terms and signed, by both Flanagan and the defendaiat, and that $500 was paid by the defendant on account of the purchase money of the lots. That being so, the plaintiffs’ relation to the subject of the negotiations ordinarily would have terminated, ¡but in the. memorandum referred to is a statement: to the effect that a formal instrument was to be executed, for which jaurpose the parties were to attend at the office of the attorneys for the'owners, where the further details were to be arranged. The evidence shows that when, pursuant- to this provision of the memorandum, the parties met ;at the office of the attorneys above referred to, an objection to the title vras taken, which appeared to be of sufficient gravity - to cause either a termination- of the whole negotiation between the-, defendant and the owners of the premises or.a.suspension-of that negotiation until that objection, could be overcome. That presents-the.only real issue there is in the case. Was there an abandonment by the defendant of the whole transaction or not ? Some two years after the employment by the defendant of the plaintiffs the premises were conveyed to the defendant. The claim of the plaintiffs is that such conveyance was made pursuant, and related back, to the original understanding as contained in the memorandum, and that, notwithstanding the delay, it was a transaction completed with *the party and substantially upon the terms secured by the plaintiffs as brokers. The learned judge, at the trial, submitted that question to the jury very clearly and fairly, and there being evidence strongly tending to support the plaintiffs’ claim, there is no reason why we should interfere with the verdict.

It was shown that, at the time of the execution of the memorandum by Flanagan, ostensibly acting as agent, and the defendant, sum of $500 was paid on account of the purchase price, which sum was retained by Flanagan until the defendant accepted the deed two years afterwards, and then Flanagan took his commissions chargeable against one of the vendors from that amount and over the balance to the vendors’ attorneys. There, was also testimony to show that, at some time during that period of two years, the vendors’ attorneys brought suit for the construction of a will affecting the title to the premises and to rectify that title, and that during the pendency of that suit one of the plaintiffs and Gahren had conversations in which the latter stated in substance that he was still in the expectation of getting the property; that he was indifferent as to time, for the lots were rising in value. There was enough to show a continuous connection between the first step taken by the plaintiffs in the matter and the last one, consisting in the delivery of the deed by the vendors to the defendant. It is unnecessary to rehearse the testimony on behalf of the defendant. The issue was fairly raised and distinctly left to the jury. The learned judge, in substance, charged that if there were an abandonment of the understanding between the parties as. expressed in the memorandum and an entirely new transaction undertaken by the defendant himself, under new conditions and changed circumstances, the plaintiffs could not recover, and that was stating the law as favorably as could have been demanded by the defendant.

A number of exceptions appear to have been taken during the progress of the trial to the admission or rejection of evidence, but the learned counsel for the defendant has not called our attention to any one of them, confining himself in his brief (the case was submitted without argument) to a general statement of the facts and to exceptions taken to the charge of the judge and to his refusal to dismiss the .complaint. The motion to dismiss the complaint was made, on no less than ten grounds, not one of which, as the case stood, possessed any merit. It was clearly shown that the plaintiffs did perform services,- and there were facts from which it might be inferred by the jury that the memorandum executed between Gahren and Flanagan contained the terms of an agreement. afterwards completed. There was a consideration for the .promise shown. The memorandum executed between Flanagan and Gahren might not have contained a contract which Gahren could specifically enforce against the owners of the premises, but that question was not involved, for the real issue in that particular .connection related to the adoption by the owners subsequently of the services of the broker and the terms contained in that memorandum. All the other grounds assume conditions of the evidence to exist which do not appear upon the record.

It is urged by the defendant that where an agent undertakes to perform a service and does not succeed, others may avail themselves of what he has done ánd carry, the transaction to a successful termination where the agent’s failure results in his retirement from the. transaction.. Oases are cited which are said to sustain that view, and it is argued that that condition of things appeared upon the record at the close of the plaintiffs’ case and should have led to a dismissal of the complaint. An exception was taken to the statement of the learned judge that there, may be grounds that this negotiation so opened by the plaintiffs ultimately led to the very sale which was subsequently made.” Whatever criticism these words may he open to, it is not the one now made by the appellant. There was evidence, and very direct and necessary evidence, that it did so lead; and if it did not, there could he no recovery. It was for the jury to say whether the whole subject was one continuous and connected transaction, beginning with the signing, of the memorandum between Flanagan and Gahren and ending with the conveyance of the property by the owners to Gahren pursuant (substantially) to the. terms of that memorandum — virtually carrying out a contract negotiated by the plaintiffs. It is beyond controversy that the plaintiffs procured that original memorandum to be-made. In this connection it is said that the terms of the original memorandum were different from those upon which the property was actually conveyed, because $75,000 was paid for the, property, and not $72,500; but there is evidence to show that the additional sum was a mere enhancement of the contract price, and was so understood to be by reason of taxes, assessments or charges that had accrued upon the property intermediate the date' of the memorandum and that of the transfer of the property by deed. That would seem to be a way of equalizing the loss of interest on the purchase price on the one side and the expenses of the property for taxes,' etc., on the other side.

It is further, claimed that the judge erred in his charge by stating to'the jury that because Gahren allowed the $500 to remain in the hands of Flanagan, that was some evidence that the original negotiation was not abandoned by Gahren. But the learned judge did not so charge. ' He merely stated that the plaintiffs so claimed, and made no further comment upon it, except in such a way as to indicate that it was not to be taken into consideration without also regarding the explanation that had been given abqut it, as appears' from the concluding sentence of his charge. The other exceptions do not require particular consideration. .The law was properly stated to' the jury, and upon the only real question of fact there was quite an abundance of evidence to authorize the verdict.

The judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and Williams, JJ., concurred.

Judgment and order affirmed, with costs.  