(dissenting). Plaintiff, a licensed real estate broker, has brought this action against the defendant, as purchaser, to recover the sum of $2,500 as his commissions in a real estate transaction. The claim is for five per cent of $50,000, claimed to be the price agreed upon. The subject-matter was the “ New Theatre,” in Hoosick Falls, N. Y., owned by the Hoosick Falls Amusement Company, Inc., with a capital of $25,000, consisting *501of 250 shares, of which Charles A. McCarthy, of that place, owned 122! shares. He had conveyed the property to the company on October 11, 1915, and had been president and manager during all of the time. Plaintiff claims that defendant, unable to obtain the theatre himself, had employed him to procure it for a price not to exceed $50,000, upon a promise to pay as stated. Defendant denies. The jury determined these questions in favor of plaintiff on sufficient evidence. The negotiations to purchase took place on June 25, 1924, when the parties went to Hoosick Falls to confer with McCarthy. Plaintiff claims that defendant then offered $50,000 and that McCarthy agreed to accept, while defendant claims that McCarthy refused to sell then. No agreement was drawn fixing the time or manner of completion. The omission may be consistent with defendant’s claim that the transaction was ended for the time or with plaintiff’s claim that defendant wanted time, until about July fifth, to raise the money. The jury determined these questions in favor of plaintiff. Nothing was done at the time fixed by defendant. He did not advise plaintiff, as he had promised, and plaintiff did not communicate with him. That was the situation until February, 1925. Then, McCarthy talked with defendant about the matter. They had met three or four times since June 25, 1924, and defendant admits that they had talked at least once about it. In February, 1925, after negotiations, McCarthy agreed to sell and defendant agreed to buy for $60,000, to consist of $30,000 cash, and balance on bond and mortgage. Thereupon, defendant organized a corporation, named partly after himself, to take the property over and he became a stockholder and director, whereupon the amusement company conveyed, at the same time conveying a small piece of land connected with the property to McCarthy, who continued as manager until his death in January, 1926, just before the action was commenced. Upon hearing about the transaction, plaintiff wrote first to McCarthy to the effect that he ought to be paid and then to defendant asking for $2,500.
It is claimed that the evidence fails to show that the amusement company was ready, able and willing to sell at the first price.
The case was tried on another theory, the wrong one, it is true, yet no exception was taken. That theory presents and is the law of the case. Although defendant, in his requests, stated that he desired to except to the charge that plaintiff would be entitled to his commission, if the jury found that McCarthy said he would sell for $50,000 and Fisher said he would give it, and asked the court to charge that he would be entitled only if he produced a seller ready, able and willing to sell at $50,000, the force of the *502exception was taken away by the answer of the court, “ that is true,” and no exception was taken to the explanatory remarks by the court. Moreover, all of the negotiations, the earlier as well as the later, were conducted through McCarthy and he procured the conveyance and at the same time one to himself of a small piece of land connected with the property. The facts show that he was able to procure a deed, when required. That is sufficient. And the fact, which we are obliged to assume under the evidence, that the sale was for a larger sum does not affect plaintiff’s right. (Mutchnick v. Friedman, 135 App. Div. 356, 358.) It is apparent that defendant wanted the theatre and, either alone or with the help of McCarthy, who was not alive at the time of the trial, planned the method which was followed, to get the theatre without paying plaintiff. The jury saw and heard the parties and decided for plaintiff, notwithstanding the disinclination to find for a plaintiff in a case like this.
I think that the judgment should be affirmed.
Davis, J., concurs.
Judgment and order reversed on the law, with costs, and, complaint dismissed, with costs.