In this action, for a broker’s commission, at an agreed rate, on having procured a purchaser for premises of the defendant the terms, in exchange, fixed by the *532defendant, and which exchange the defendant refused to make ■ after his terms had been accepted, the proposed purchaser was asked by the court contrary to due objection and exception, on behalf of the defendant, a series of questions relating to counter offers and terms stated in conversations, occurring in the absence of the defendant, whom the proposed purchaser never met. ' The statements elicited were not relevant to the issue: Did, or did not, the plaintiff procure a purchaser on the defendant’s terms, while these were still open to acceptance ? They may, have been prejudicial to the defendant by exhibiting diligence, and so impressing the jury, that the plaintiff was to be rewarded for his efforts, even though he did-, not effect, what he claimed in his complaint. The judgment should be reversed. Greene v. White, 37 N. Y. 405; Foote v. Beecher, 78 N. Y. 155.
Judgment affirmed, with costs to respondent.