#### Ernest A. Turner, Respondent, *v.*William Lane, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Broker — Real estate — Authority to sell — Penal Code, 640a — Burden of proof — Copimissions— Pleading conditions precedent.

Where in an agreement in -writing between the owner of certain real estate in the city of New York and a real estate broker, signed upon the same day that a deed of the premises was delivered to the purchaser, it is provided that a commission should be paid, *“*one half when second payment of building loan is due and payable, and balance immediately after enclosure payment is due and *388made” there is, if signed before the deed, a sufficient compliance with the provisions of 640d of the Penal Code, but to entitle the broker to recover his commissions the burden of proof is upon him to establish that at the time he made the sale he had the written authority required by the statute.

That the two events provided for in the agreement were conditions precedent to plaintiff’s right to recover and should have been pleaded and proved upon the trial.

That defendant prevented the happening of the contingency may not be shown as an excuse for its not happening, unless pleaded.

Appeal by the defendant from a judgment rendered in, favor of'the plaintiff in the Municipal Court of the city of New York, twelfth district, borough of Manhattan, after a trial before the court without a jury.

Bowers & Sands (Manfred W. Ehfich, of counsel), for appellant.

Ferguson & Ferguson (L. C. Ferguson, of counsel), for respondent

Truax, J.

The only agreement in writing between the plaintiff and the defendant is the one dated August 4, 1904, by which the plaintiff agreed to take payment of commission for selling the southwest corner of One Hundredth street and Madison avenue for $60,000, for William Lane to John E. Olson, as follows: “ one half when second payment of building loan is due and payable, and balance immediately after enclosure payment is due and made.” This agreement appears to have been signed the day the defendant delivered to the purchaser a deed of said property. The case does not show that the plaintiff, the broker, had the written authority of the owner of the property to make a sale, and want of such authority was alleged in the answer. It does not appear whether the paper of August fourth was or was not signed before the deed conveying the property to said Olson was signed. If it were signed before such deed, we are of the opinion that it would be a sufficient compliance with section 64'0d of the Penal Code. But the burden was on the plaintiff of establishing that at the time he made the sale, he had the written authority required by the statute and decisions *389to -make the sale, and not having established that fact it is well settled, at least in this department, that he cannot recover. Borgio v. Gange, 87 N. Y. Supp. 538; Cohen v. Boccuzzi, 42 Misc. Rep. 544; 86 N. Y. Supp. 187; Whiteley v. Terry, 83 App. Div. 197.

But irrespective of the point above stated, there is another reason for reversing the judgment. If the paper of August fourth be treated as a compliance with the statute, then, plaintiff was to be paid one half of the amount due when the second payment of the building loan was due and payable, and was to be paid the other half immediately after the enclosure payment was due and paid.

The evidence shows that neither one of these events has happened, and that the reason they did not happen was because of the failure of the purchaser to comply with the terms of the building loan agreement. There is no allegation on the part of the plaintiff that the contingency or contingencies contemplated by the agreement of August fourth had ever ■ happened, nor was any excuse for their not having happened pleaded.

The plaintiff also alleges on this argument that an act of the defendant prevented the happening of the contingency mentioned in the agreement of August fourth, but such excuse is. not pleaded, and it is well settled that not having been pleaded it could not be proved on the trial Elting v. Dayton, 63 Hun, 629; moreover, plaintiff was not entitled to anything until the second payment of the building loan was due and payable and was not entitled to the full commissions until the enclosure payment was due and paid. In other words these two events were conditions precedent to plaintiff’s right to recover commissions from the defendant, and should have been pleaded and proved on the trial. Tooker v. Arnoux, 76 N. Y. 397.

The judgment is reversed and a new trial ordered, with costs to the appellant, to abide the event.'

Scott and Dowling, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant, to abide event.