The evidence established that the seller, by the proposed contract, attempted to change one of the terms of sale which its representative Maher had communicated to the plaintiff, broker, and that the deal fell through because of such change. Under such circumstances, the plaintiff was entitled to recover its commissions and the existence of a writing to the effect that no compensation was to be deemed earned until title actually passed did not defeat such right. (Colvin v. Post Mortgage & Land Co., 225 N. Y. 510; Amies v. Wesnofske, 255 id. 156.) Nor did the writing have the effect of excluding proof as to the terms upon which the property was to be offered for sale, for it specifically stated that data with reference to the property had been delivered to the broker. That purchaser’s representative was ready and able in purchaser’s behalf to close on the terms communicated was sufficiently established.
It further appeared from the evidence, at least prima facie, that Maher, the defendant’s representative, had authority to communicate terms of sale. There was no denial of that agency or testimony to contradict plaintiff’s version as to what Maher had said with respect to the terms of the subject mortgage. In the absence of such contradiction, plaintiff’s right to its commissions was established.
Judgment reversed, with costs, and judgment directed for the plaintiff for $2,000, with interest and costs.
All concur. Present — Levy, Hammer and Callahan, JJ.