This was an action for commissions on the sale of real estate. The preponderance of proof shows that plaintiff never brought the defendant and the purchaser together. The proposed purchaser refused to buy on the terms ■ named by plaintiff, the negotiations between them were broken off, the plaintiff did nothing further and the transaction so far as he was concerned came to an end. In other words his efforts ended in failure. Subsequently the defendant negotiated with the proposed purchaser, the -terms of sale were modified and a sale was effected. Where a broker’s efforts fail, his employer is not precluded from thereafter negotiating with the purchaser found by the broker, even on the same terms, and the mere fact that the broker’s efforts may have led to subsequent negotiations, which, under more favorable circumstances, resulted in a sale, does not alone entitle the broker to a commission. Donavan v. Weed, 182 N. Y. 43; Miller v. Vining, 112 App. Div., 304; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Wylie v. Marine National Bank, 61 id. 415. The judgment is against the weight of evidence, and should be reversed and a new trial granted, with costs to appellant to abide the event.
Present: Gildersleevb, Leveetritt and Erlaeger, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.