The exceptions to the charge and to the refusals to charge set forth in the statements of facts require a reversal of the judgment. We find no evidence in the record that the defendant made inquiries at the premises concerning the rent, but the jury were left to infer from the fact that defendant visited the premises, rode up in the elevator and asked about the number of apartments rented, that he also asked and learned the truth about the rents received: If the jury believed the testimony of the defendant with reference to his instructing plaintiff to ascertain the actual facts concerning the rentals and as to the representations made by plaintiff in that regard, and that such representations were relied upon by defendant, plaintiff was not entitled to recover.. Having employed plaintiff to acquire. this information defendant was not • obliged personally to reinvestigate the question. The information obtained on account of its inaccuracy and untruthfulness was of no value to defendant, and he was misled thereby into executing the contract which, because the misrepresentations were also chargeable to the owners of the N ew York property, was not enf orcible against him. To alio w a broker to recover commissions on these facts which the jury might have found from the evidence would be inequitable, and we know of no principle of law requiring it. The jury evidently believed that the broker was not guilty of fraud, and under the charge of the learned trial judge they then had no alternative but to render a verdict in his favor. .
If these other facts, which by the charge the jury were precluded from acting upon, had been found in favor of defendant it could not be said that the broker’s commissions were earned when through his failure to comply with his principal’s instructions he had induced the latter to enter into a fruitless contract.
Other questions not wholly without merit have been argued, but as they will not necessarily arise upon the new trial, which must be1 *231granted for the reasons already stated, we deem it unnecessary to ■consider them.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Yan Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment and order reversed, new trial granted, costs to appellant to abide event.