#### Henry O. Kirchner, Respondent, *v.*Louis Reichardt, Appellant.

(Supreme Court, Appellate Term,

May, 1899.)

Principal and agent—.Broker’s action for commissions — Proof by proposed purchaser.

Where a broker bripgs an action, to recover commissions for effect* • ■ ing an exchange of real estate upon terms dictated by his client ■ but • /. . . • which the latter finally refused to abide by, the broker may p.rove th.e necessary. elements of his case by the proposed purchaser; and the latter may testify to the conditions upon which the exchange -• was to. be-made where these conditions have been communicated' to and. accepted by the broker’s client. ■ •

MacLean, J., dissented.

Appeal by the defendant from a judgment of the Municipal 'Court, third district, borough of Manhattan, rendered in fkvor of.

the plaintiff, upon the verdict , of a jury.

Frank Schaeffler, for appellant.

Goellef, Shaffer & Eisler, for respondent,

Freedman, P. J.

The defendant in this actipn appeals-from a judgment ¡against him, entered upon the verdict of a jury rendered ■ in favor of the plaintiff.. ‘ ■

At the close 'of the testimony the defendant made- no motion to . dismiss the complaint, and thereby conceded that, there' was sufficient evidence to be submitted to the jury, for their determination. Dunham v. Harlam, 22 Misc. Rep. 318.

And in fact- there was such -a direct conflict of-testimony between witnesses, that the case necessarily was one for- the jury. The appellant^ in his brief, substantially admits this.

The question then to be considered is whether any error of so grave a character as to warrant this court in reversing the judgment was committed upon the trial. •

The charge to the jury' by the trial judge was fair and impartial, and neithér the charge, nor the refusals to charge, disclose reversible error.

*531The only question worthy of consideration, and the principal ground for reversal urged by the appellant, is as to the admissibility of the testimony of the witness Cassidy, who Was the man with whom the plaintiff alleged he had contracted to exchange the property of the defendant.

The material facts testified to by this witness, were that he (Cassidy) was the owner of the property offered by him in exchange for that of the defendant, and that he (Cassidy) was ■ able, ready and willing to make such exchange upon the terms proposed to him by the plaintiff, and which terms the plaintiff had previously testified he was empowered by defendant to make.

In order to maintain this action it was necessary for the plaintiff to show these facts. Mooney v. Elder, 56 N. Y. 238; Moses v. Bierling, 31 N. Y. 464. And it was competent to show them by the testimony of the proposed purchaser. Cook v. Kroemeke, 4 Daly, 268.

Under the circumstances it was not error to permit Cassidy to testify that he was the owner of the lots offered by him. It was a fact to which a witness having the requisite knowledge could tes- . tify directly. De Wolf v. Williams, 69 N. Y. 622; Caspar v. O’Brien, 15 Abb. Pr. (N. S.) 402.

Moreover, the record shows that the testimony of Cassidy, to which the objections of the defendant were taken, was principally in reference to the terms and conditions upon which the exchange between the defendant and Cassidy was to be made, and were communicated to the defendant by the plaintiff, and were finally accepted by the defendant, and a time fixed upon for a meeting between Cassidy and the defendant to consummate the exchange, but at which meeting the defendant failed to attend.

The testimony of Cassidy was, therefore, competent and material.

Upon a careful examination and consideration of all the evidence, it appears that no right of the defendant has been prejudiced, either in the admission of testimony or the submission of the. case to the jury, and that the verdict is sustained by the evidence. Judgment should be affirmed, with costs.

Leveetbitt, J., concurs.

MacLean, J. (dissenting.)

In this action, for a broker’s commission, at an agreed rate, on having procured a purchaser for premises of the defendant the terms, in exchange, fixed by the *532defendant, and which exchange the defendant refused to make ■ after his terms had been accepted, the proposed purchaser was asked by the court contrary to due objection and exception, on behalf of the defendant, a series of questions relating to counter offers and terms stated in conversations, occurring in the absence of the defendant, whom the proposed purchaser never met. ' The statements elicited were not relevant to the issue: Did, or did not, the plaintiff procure a purchaser on the defendant’s terms, while these were still open to acceptance ? They may, have been prejudicial to the defendant by exhibiting diligence, and so impressing the jury, that the plaintiff was to be rewarded for his efforts, even though he did-, not effect, what he claimed in his complaint. The judgment should be reversed. Greene v. White, 37 N. Y. 405; Foote v. Beecher, 78 N. Y. 155.

Judgment affirmed, with costs to respondent.