
    Louis Ettinghoff and Samuel Slavitz, Appellants, v. Henry Horowitz, Respondent.
    Second Department,
    November 16, 1906.
    Principal and agent — when real estate broker not entitled to commissions.
    A broker procuring a customer for lands is not .entitled to commissions, if the owner has already sold the lands to another, in the absence of proof of bad faith on the part of the owner.
    A broker must produce his customer while the premises are in the market.
    Hookeb, J., dissented.
    Appeal by the plaintiffs, Louis Ettinghoff and another, from a judgment of the Municipal Court of the city of Hew York, in favor of the defendant dismissing plaintiffs’ complaint.
    
      Jerome H. Buck, for the appellants.
    
      Charles Bienenfeld, for the respondent.
   Woodward, J.:

This is an action for brokers’ commissions alleged to have been earned by the plaintiffs in procuring a customer ready, willing and able to purchase upon the defendant’s terms. There does not seem to be any dispute that the plaintiffs produced a proper customer, but the defendant claims that at the time the customer was pror duced he had contracted to sell the premises to another, and the learned court below appears to have believed his testimony upon this point. There was no conflict of evidence upon this point, and there is no evidence to show that the defendant acted in bad faith in selling the premises before the plaintiffs had produced their customer, and we are of "opinion that in the absence of such evidence a broker is not entitled to commissions. If he were, then every owner of premises who employed more than one broker might be held liable for commissions without number if the several brokers should produce customers after the premises had been sold. We think that a broker must produce his customer while the premises are in the market; that the owner does not contract to hold them for the customer to be produced by the broker, but that, acting in good faith, he may sell the premises at any time and to any customer who is willing to buy upon his terms, and that commissions may not be collected for customers produced after the premises have been sold.

The judgment appealed from should be affirmed, with costs.,

Hirschberg, P. J., Rich and Miller, JJ., concurred; Hooker, J., dissented.

Judgment of the Municipal Court affirmed, with costs. ■  