The evidence of the plaintiff is as follows: Bryan McCahill, the defendant, said to me “I give you the refusal of this property from week to week, and if you do sell it during that time you can have the deed in your own name, so that you can give the deed to the party purchasing.” It is evident that, after this conversation, Mr. Badenhop is treated by Mr. McCahill as the owner of the property, because he (McCahill) subsequently, at another conversation, in the presence of Dr. Heins, said: “If you want to buy, you will have to buy of Badenhop.” The Doctor said: “Badenhop asks too much for the property; I will not give it.” McCahill said : “ Then you cannot have it.” Now, to my mind, this is a verbal agreement to transfer real estate, and not a case that comes within the scope of the decision made in case of Fiero agt. Fiero (Haydock agt. Stow, 40 N. Y., 363). This decision was made November 24, 1869. The case of Fiero agt. Fiero is not authority here. There was an absolute authority to sell the property, and all over the price named the broker was to receive as his pay. This case shows that the grantor, Mr. McCahill, by parol, agreed to give the deed to plaintiff in his (plaintiff’s) own name, for $30/000, and that he, McCahill, would give plaintiff $300 for his services. But I doubt the soundness of the rule laid down in Fiero agt. Fiero case. The learned justice, delivering the opinion of the court, cites cases (Worrall agt. Munn., 1 Seld., 229; Hosford agt. Carter, 10 Abb. 453; and Barnard agt. Monnot, 33 How.); none of which touch the question before him. The case of Wor-
*196rall agt. Munn involved the power of an agent to sign a contract for his principal, and no more. The case of Hosford agt. Carter did not touch the question, because the question there related to the right of a party. to sue for his compensation after bringing the parties who were to convey together. And the case of Barnard agt. Monnot, simply affirms the doctrine, that when a broker brings the parties together his commission, as broker, is earned. So that, we are left with the single authority of Fiero agt. Fiero, to substantiate this new doctrine. But, as I have said, that case is quite different to the one under consideration. There the agreement was, expressly, for any surplus over the price fixed. Here the agreement was—“You get me $30,000 for my property within a week, and I will give you the deed in your own name, or convey the property to you and give you three hundred dollars commission. A clearer case cannot be imagined to invoke the safe rule established by the statute. If this were not so, it can easily be imagined how a combination could be made by designing men to strip a party of his legitimate rights. Indeed, it must be clear to all, that the act was passed to provide against such operations as are detailed in this case. But even if the rule laid down in Fiero agt. Fiero be correct, it should be guarded, and so strictly construed as not to open the breach wider, because it is verging on the very limits of the statute, should not in any case, or in any way, be enlarged. If the plaintiff in this case had sued for the value of his services, I have no doubt he could have recovered a fair compensation; but as the pleadings and proof now stand, it is clearly a case within the statute, and he cannot therefore succeed. The law in real estate matters, and the powers of agents and brokers are well defined in the case of Haydock agt. Stow (4 N. Y., 363), and I think, it must govern in this action. I find in the English books (Kelly agt. Webster, 12 C., B. 283, 16th Jur. 838, 21 L. J, C. P. 163), some very important authorities on the question before us. The case of Kelly agt. Webster, cited above, *197was an action on a verbal agreement between plaintiff and defendant, that, in consideration of plaintiff giving defendant immediate possession of a house which plaintiff held and occupied under an agreement with his landlord for years, and of the fixtures, &c., the defendant would pay ¿£100. The landlord agreed to the change of tenants, and the plaintiff gave up possession to defendant, who paid a portion of the hundred pounds, but did not pay the balance. Plaintiff sued to recover the balance. Held, this was a contract concerning the interest in lands, and that, as it was not in writing, the statute of frauds prevented any action being maintainable, although part of it was performed. I will say here that our statute is precisely the English statute re-enacted. It will be seen that the English case I have cited is a stronger case for the defense than any to be found in our books, thereby exhibiting the jealousy with which they construe their enactments relating to transactions in real property.
There is another reason why in this action the plaintiff cannot recover. In a great city such as burs, real estate increases in value daily, and so largely and rapidly that it would be most hazardous to allow a verbal power such as is testified to, running from Saturday to Saturday, to sell large and valuable quantities of real estate, to take effect. It would unsettle the well-defined powers of brokers and others in real estate transactions, and would place the unwary at the mercy of designing men.
The motion on the minntes for a new trial must be denied.