The action was brought by the plaintiff, a real estate broker, to recover for services performed by him at defend*260ant’s request in and about the purchase by defendant of certain premises of one Englander. The plaintiff, in his complaint and testimony, relied upon an express promise of the defendant to pay the plaintiff a commission of i per cent, upon the amount of the purchase price in case the plaintiff should procure- the premises for the defendant at a price not exceeding $73,000. The plaintiff, as well as other brokers, had been employed- by Englander to sell the the property. The defendant did acquire the property, but, as he claimed, through the efforts of another broker, one Jacobowitz, to whom Englander paid a commission. The burden was therefore upon the plaintiff to establish by a clear preponderance of evidence not only the express contract sued upon, but also that he procured by his own efforts the premises for the defendant. Upon the latter proposition the evidence appears to preponderate in favor of the defendant, and in the interests of justice there should be a retrial of the issues.
Judgment and order reversed, and a new trial ordered, with costs to- appellant to abide the event. All concur.