This is an action to recover commissions for the sale of real property. The complaint alleges that defendant engaged plaintiff to procure a purchaser for premises Nos. 164-166 West Seventy-fourth street at $350,000, and agreed to pay him as commission $4,100; that pursuant to said agreement plaintiff negotiated with various persons and in or about the month of January, 1921, procured one Edward Arlington as a purchaser with whom defend*515ant entered into a written contract for the purchase and sale of said premises for $350,000.
Subsequently there was served an amended complaint alleging plaintiff's employment to sell said premises; that he engaged one Joseph Freiberg to act as his agent in connection with the matter; that in or about the month of January, 1921, the said Joseph Freiberg, acting as agent for and on behalf of the plaintiff, produced as a purchaser Edward Arlington with whom defendant entered into a written contract for the sale of said premises for $342,500, and that pursuant to said employment plaintiff became entitled to commissions in the sum of $4,025.
On the trial plaintiff testified that in the year 1920 he was selling linens to the hotel and restaurant trade and had sold linens to defendant in connection with her operation of the Seventy-fourth street premises; that she stated she would like to dispose of her property and retire from the hotel business, as her health was not good and she was getting too old to manage her hotel, and asked plaintiff to procure a purchaser for her; “ that she did not want to have anything to do with the people actually engaged in the real estate business.” Nothing in particular was said about compensation, except that plaintiff was to be compensated if he procured a purchaser, and nothing was mentioned as to the amount he was to receive. He says that beginning in March, 1920, he spoke to a number of persons interested in the purchase of hotels about this property, at that time stating the price at $325,000, and that he brought two people to defendant, the first a Mr. Schiff, about six weeks to two months from the time defendant first spoke to plaintiff. The effort to interest Schiff was unsuccessful. Plaintiff testified that in December, 1920, he spoke to Mr. Freiberg, who had just purchased the Hotel Maryland, and Freiberg stated that he would not be interested but would mention the matter to Mr. Arlington from whom he had purchased the Hotel Maryland; that the next day plaintiff saw Freiberg who stated he had spoken to Arlington, that Mr. Arlington was interested and wanted to see a floor plan; that plaintiff obtained a floor plan from defendant and took it to Mr. Freiberg whom he saw again the next day when he was told that Arlington would go up that afternoon to look at the hotel, whereupon plaintiff telephoned defendant to be there to show Arlington through the house; that a day or two later plaintiff saw defendant, who stated that she did not want to sell the house then; and that she said she had sold it to Mr. Arlington but she was not going to let him have it.
Mr. Freiberg testified that he was the proprietor of the Hotel Maryland and knew Arlington, having bought the Hotel Maryland *516from him; that he also knew the plaintiff; that he had a conversation with plaintiff about Arlington concerning the purchase of defendant’s property, and thus obtained the details and the purchase price; that plaintiff gave him one floor plan of the property which he gave to Arlington; that he reported to plaintiff that Mr. Arlington was going up to look at the property; that he was not interested in making claim at any time for commissions in connection with the services rendered in getting Mr. Arlington interested; and that he did it because he was a friend of plaintiff who asked him to do that for him.
On cross-examination Freiberg admitted his signature to a paper marked “ Defendant’s Ex. A,” a letter to Arlington stating that, in the event Arlington should purchase defendant’s premises, “ there is no commission to be paid to me.”
At the close of plaintiff’s case defendant moved to dismiss the complaint and this motion was renewed at the end of the case.
Plaintiff has failed to show that he procured a purchaser for defendant’s property.
Plaintiff never met Arlington. The basis of his claim is that he mentioned the property to Freiberg who in turn mentioned it to Arlington. It does not appear that Freiberg ever met defendant or took part in any way in the negotiations leading up to the contract. The contract of sale between defendant and Arlington recites that “ purchaser certifies that he was introduced to the seller by Joseph Freiberg and knows of no broker in this matter.”
Plaintiff asserts that Freiberg was acting for him. Freiberg wrote the letter to Arlington to the effect that, in the event Arlington should purchase the premises, no commission was to be paid to him. Plaintiff contends that this letter is not binding upon him, and that it is to be limited in its application to a claim by Freiberg to the commissions sought to be recovered in this action. There is no merit in this contention. Freiberg was an agent of plaintiff and the letter is binding on him.
It does not appear that plaintiff made any claim for commissions between January, 1921, when the contract was signed, and November, 1921, when the action was brought. The difference between the claim made in the complaint and that made in the amended complaint, as well as plaintiff’s testimony that he did not meet Mr. Arlington or take part in the negotiations, showed that he-was not the procuring cause of the contract.
The judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
Clarke, P. J., and Dowling, J., concur; Merrell and McAvor, JJ., dissent.