(dissenting):
The action is brought to recover a balance claimed to be due as commission earned in effecting the exchange of certain real property owned by the defendant. The exchange was duly accomplished through the plaintiff’s efforts, and the issue in the case is one of fact, namely, whether the plaintiff agreed to accept §500 in full payment for his services in order to induce the defendant to accept the sum of $48,000 instead of the sum of $50,000 which they were asking in cash, or whether the facts are as claimed by the plaintiff, namely, that after the parties had agreed upon the exchange and the payment of $48,000 cash, the defendant told the plaintiff that it would not pay more than $500, which he accepted under protest and without full knowledge of his rights. In the latter event, plaintiff’s commission having been earned when the parties came to an agreement (plaintiff having brought the parties together for that purpose), there would be no consideration for plaintiff’s agreement to accept less than his full commission.
What actually happened as disclosed by the record is that after the defendant decided to accept $48,000 for its property instead of the $50,000, it then looked around to see whether it could not save something by cutting down the commission due the plaintiff and by threatening the plaintiff that unless he would cut down his commission, it would refuse to sign the contract and hence its agreement would be unenforcible. If these be the facts, and the finding of the jury confirms the reading of this record, then there was no consideration for the plaintiff accepting a sum less than the full commission due. The fact that the defendant had the power to make unenforcible the agreement which it had arrived at by refusing to sign the contract and thus making the plaintiff think that it had him in its power does not furnish a sufficient consideration for the agreement of the plaintiff to accept $500 instead of a full commission.
As was said by Mr. Justice Miller in Alt v. Doscher (102 App. Div. 344, 347): “ If we consider the question from the standpoint of what the broker engages to do, all difficulty is removed. Adopting the definition of Story on Agency (9th ed. § 28), quoted with approval by Judge Finch in Sibbald v. Bethlehem Iron Company *482(83 N. Y. 378, 381), ‘ a broker * * * is an agent employed to make bargains/ Where, therefore, there are no express stipulations in the contract of employment varying the general rule, his contract is performed when, with him as the procuring cause, a bargain has been made; in other words, when a purchaser has been produced, satisfactory to his principal, and there has been a meeting of the minds of the parties to the contract of purchase and sale, so that an enforcible, binding contract is made. To the effect that the commissions are then due see. Mooney v. Elder (56 N. Y. 238) and Gilder v. Davis (137 id. 504), although, in the latter case, the question was not necessarily involved, and Judge Earl uses the language that ‘ when a broker employed to negotiate a sale of real estate brings to his employer a responsible purchaser, willing to buy upon the terms prescribed, he has earned his commissions/ which is undoubtedly the rule where no enforcible contract is made, and the broker seeks to recover, notwithstanding a capricious refusal of his principal to make a contract.”
To the same effect, see the words of Davis, J., in Hough v. Baldwin (50 Misc. 546, 548): “ This being so, if the respondent was entitled to any commissions, his right to them accrued on the day preceding the signing of the contract; and his subsequent agreement to wait for them until title passed was unsupported by any consideration, even though it may be true that the appellant, on the day following the oral agreement, refused to sign a written agreement of exchange unless the respondent would agree to wait for his commissions. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Alt v. Doscher, 102 App. Div. 344, 347; Suydam v. Healy, 93 id. 397; Marks v. Elliot, 90 N. Y. Supp. 331; Cox v. Hawke, 49 Misc. Rep. 106; Moskowitz v. Hornberger, 20 id. 558; Halprin v. Schachne, 27 id. 195, 198.)”
For the same reason, since the broker had earned his commission when he had brought the parties together and the full amount of his commission was then due, there was no accord and satisfaction proven by showing that he agreed to accept a lesser sum than the full amount of his commissions.
The judgment appealed from should, therefore, be affirmed.
Judgment and order reversed and new trial ordered, with costs to appellant to abide the event.