#### Abraham Sotsky, Respondent, *v.*Simon Ginsburg and Harris Ginsburg, Appellants.

Second Department,

December 30, 1908.

Principal and agent — broker’s action for commissions.

Where a real estate broker has procured a customer willing and able to buy lands at the terms named by the principal and the parties actually come to an agreement, he is entitled to his commissions, although the execution of the contract of sale was deferred by reason of the vendor’s failure to appear and the vendee finally refused to buy the lands at an increased price demanded by the vendor unless an allowance for a shortage in the amount of land was made.

Appeal by the defendants, Simon Ginsburg and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s «office on the 24th day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.

*Alfred D.*Lind, for the appellants.

*Jacob Manheim*and *Harry A.*Gordon, for the respondent.

Woodward, J.:

There is evidence in this case which supports the finding of the jury that the plaintiff’s assignors entered into a contract with defendants for the sale of certain premises at Avenue C and Fifth street in the borough of Manhattan, on which they were to *442have the usual commission of one per cent; that the defendants offered to take $160,000 for the premises, with certain conditions as to payments, and that the brokers produced a customer who was ready, willing and able to take the premises at the terms named by the defendants; that the parties actually came to an agreement, and went to the office of the defendants’ attorneys for the purpose of entering into a contract; that owing to the lateness of the hour the drawing of the contract was postponed to the following morning ; that on the following morning the brokers appeared with their customer, but the defendants failed to meet them; that subsequently the defendants demanded an increased price for the property, making the amount $162,500, and that the brokers’ proposed purchaser agreed to take the property at the advanced figure, and again repaired to the office of the defendants’ attorneys for the purpose of drawing the contract; that while there it developed that the defendants had only seventy-two feet frontage on Avenue O, whereas they had represented, both to the brokers and to the proposed purchaser, that the frontage was something over seventy-five feet, and thereupon the proposed purchaser demanded an allowance for this shortage in the amount of land, and at the same time offered to take the premises just as they were at the original price which the brokers were authorized to accept for the same. The defendants would not accept this, and the transaction fell through. The defendants now contend that this case is brought within the rule laid down in *Hausman*v. *Herdtfelder*(81 App. Div. 46) and that the plaintiff is not entitled to recover. Without considering how far that case might be regarded as controlling under its own particular facts, it is sufficient to point out that in that case the parties never came to an agreement, while in the case at bar they did; the plaintiff’s proposed purchaser not only agreed to take the premises at the price and terms suggested by the defendants at the original meeting, but after the defendants had repudiated their contract and demanded an increase, he was still ready, willing and. able to take the premises with the shortage of three feet frontage at the original terms. Under such circumstances it is not to be questioned that the brokers had earned their commissions; this was done at the original meeting of the parties, and while it is true that the plaintiff claimed commissions on the $162,500, the verdict of the, jury *443appears to have been only for commissions on $160,000, with interest from the date of the transaction, and this judgment should not disturbed.

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

Present — Woodward, Jenks, Catnor, Rich and Hiller, JJ.

Judgment and order unanimously affirmed, with costs.