I am of opinion that the verdict upon which the judgment was entered herein is fairly supported by-a preponderance of the evidence. According to the testimony of the plaintiff and of a disinterested witness, one Signed, who owned the El Dorado apartment house on Central Park West, with whom defendant, through the plaintiff, had negotiations for the exchange of said apart-, ment house for á parcel of land represented as owned by defendant on Gramerey park, the minds of the parties met with respect to all of the terms of the exchange of their properties, and it wras agreed that they should meet at a specified hour on the following • day in .the office of the attorney for Sign ell and execute a formal contract for such exchange, and the defendant agreed to and did have his attorney, one Rogers, there, but defaulted in appearing personally, as agreed, and failed to consummate the contract. The»; testimony of these witnesses upon the material point that an' agreement was reached with respect to all of the terms of the exchange of the properties is flatly controverted by the testimony of the defendant and one Simon who was interested on account of being a tenant in common with the defendant of an undivided half of the Gramercy Park property and was also the defendant’s brother-in-law. With respect to the parties all having met in the office of Signell’s attorney pursuant to appointment to execute the formal contract, Signell’s attorney testifies unqualifiedly to the presence of Rogers, claiming to appear for and to represent the defendant and that they went over a draft of contract together and agreed Upon certain changes and alterations, and that defendant *567failing to appear, Bogers took the draft of the contract away with him and later notified the witness that the “ deal was off.’’ Rogers does not positively deny that he was in the office of Sign ell’s Attorney to represent the defendant or that- he examined or Approved the contract, as the other parties present testified. He merely says,- in effect, that he has no recollection of it and that he thinks he would have made an entry on his diary had he been there, and he finds none. He was distantly related to the defendant. We have thus presented a case with three witnesses on each side and all on one side related and two of them interested. The testimony1" of the witnesses that they met in the office of the attorney for Signell pursuant to appointment for the purpose of signing a formal agreement pursuant to the terms of exchange upon which the minds of the parties had met is positive and there is nó escape from the conclusion that it is either true or all of those witnesses have committed perjury. The defendant and Simon deny, that there was any understanding with respect to- a meeting at the lawyer’s office or with respect to the execution of a contract. It is, of . course, possible that they might innocently be mistaken, but it is highly probable that if there was an understanding to meet at the attorney’s office they must have recalled it and in denying it deliberately committed perjury. The testimony of Bogers that he has no recollection .of being in the office of the attorney for Signell is not entitled to the same weight as the positive testimony of the ' witnesses to the effect that he was there, and who related what he said and did. If the testimony of the defendant and of his witnesses to the effect that there was no arrangement to meet in ethe attorney’s office be.not true, then the testimony adduced in behalf of the plaintiff, to the effect that the minds of the parties had met upon all of the terms of the agreement, is materially strengthened, because the testimony controverting it is decidedly weakened. In these circumstances, and with no other probability to aid either side, the question necessarily depending not upon whether witnesses are merely mistaken, but upon which witnesses have committed perjury, I am of opinion that the verdict of the jury ought not to be disturbed.
The defendant was desirous of exchanging the Q-ramcrcy Park property for improved property and employed the plaintiff as a *568broker, upon an agreed commission, to find a customer with whom the exchange might be made upon terms to be agreed upon. Plaintiff, according to the evidence to which reference has been .made showed that he procured a customer with whom the defendant agreed upon all of the terms for the exchange of their respective properties, and lie further sufficiently showed that pursuant to appointment, the customer was present, ready, willing and able to execute the. contract and to perform it, but that the defendant defaulted. In these circumstances the broker became entitled to his commissions. (Folinsbee v. Sawyer, 8 Misc. Rep. 370; Baumann v. Nevins, 52 App. Div. 290; Woolley v. Lowenstein, 83 Hun, 155 ; Suydam v. Healy, 93 App. Div. 396 ; Cody v. Dempsey, 86 id. 335.) I, therefore, vote for affirmance.
Miller, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.