The plaintiff, a real estate broker, brought this action to recover $1,500 for effectuating a sale of real property in the city of New York for defendant Louis Frankel, as vendor, to Alexander Watterson, as purchaser.
There is no dispute as to plaintiff’s having been duly licensed, as to the employment, the agreed amount of the brokerage and that plaintiff procured a prospective purchaser and brought the parties together. However, they signed a binder which, though sufficient in itself, contemplated a formal contract.
The amended answer alleges a defense which in part is as follows: “ It was agreed between the plaintiff and defendant herein that the commission was to be the sum of $1,500 payable in the manner following: $750 at the time and when a formal contract was made by said A. Watterson on November 20th, 1923, as provided for in the acceptance of November 14th, 1923, and only in case the balance of the money to be paid on the signing of the contract, to wit, $2,500, was paid, and in case of the signing of such contract the balance of $750 was to be paid on the closing of title; that upon this definite understanding between the plaintiff and defendant herein,' the said acceptance was signed by the defendant herein.”
It is alleged that Watterson refused to sign the formal contract or to pay the balance of the $2,500 payment; that he began an action, which at the time of the amendment of the answer was still pending, for the recovery of $500 paid on the binder; and that by reason of the failure of said Watterson to sign a formal contract and his “ failure to pay the balance of $2,500 as provided for in the acceptance, dated November 14th, 1923, the said plaintiff herein, in view of the agreement had between defendant and plaintiff, Was not entitled to any commission.”
It is to be noted that the conditions to the obligation to pay the brokerage thus alleged are the purchaser’s signing the formal contract and his making payment of the remainder of the $2,500 which was to be paid on contract. The reference to the time of closing might indicate a postponement of the time of payment of half of the agreed commission, but it does not indicate closing of title as a condition to the commission being earned. Nor does the record indicate that defendant might be able to show there Was such a condition.
On the papers presented, it is necessary to go very far in defendant’s favor to find that there might have been some special agreement as to commission such as the amended answer suggests. However, this is immaterial in view of the subsequent proceedings.
The plaintiff did procure a person willing to purchase the property, *567said Watterson, who signed the writing dated November 14, 1923, providing for a sale, for $142,000 subject to mortgages, all of the terms being specifically set forth, a copy of this agreement being attached to the amended answer.
The moving affidavit shows that the defendant in this case brought an action and recovered a judgment in the Supreme Court, New York county, against the purchaser, Watterson, upon the binder as a contract of sale. The recovery was for damages growing out of the breach of that contract, being the difference between the contract price of $142,000 and a resale price of $138,250. This is evidenced by the complaint in that action to which was attached a copy of the agreement of sale. The jury credited the payment of $500 and rendered a verdict for $3,250 upon which a judgment was entered. These facts are conceded.
If we assume there was an agreement that the payment of the brokerage was to be postponed as indicated above, an arrangement denied by plaintiff and not really supported for defendant, as pointed out at the Appellate Term, defendant availed himself of the binder as a contract, and, it might be added, successfully so in his action against the purchaser. The agreement alleged in the answer could not be interpreted to mean that the brokerage would not be paid if it became unnecessary to have a formal contract. As to the part of the broker’s compensation to be paid on consummation of the contract it is established by the affidavits that there was no special agreement such as might possibly relieve defendant from payment of that part of the brokerage despite the fact that defendant enforced the contract in the action against the purchaser.
The plaintiff appears to have been employed without reservation on September 5, 1923, to sell property belonging to defendant. That he secured a purchaser ready, able and willing to purchase at the terms' offered is not denied and is shown by the written contract signed by the parties November 14, 1923. When plaintiff secured such a purchaser he also earned his commissions under the terms of his employment especially in view of the fact that the contract of sale was afterwards enforced by the court giving the defendant the benefit of the contract and plaintiff’s services. (Belmar Contracting Co. v. State of N. Y., 194 App. Div. 69, 73; Strout Farm Agency, Inc., v. De Forest, 192 id. 790.)
The determination should be affirmed, with costs.
Clarke, P. J. and Dowling, J., concur; Merrell and Finch, JJ., dissent.