From an examination, of the- evidence it-appears that the original agreement between the plaintiffs and defendant took place in the latter part of .October or the first .of November, and after certain' negotiations the contract for the exchange contemplated was signed November 9, 1893. . In the absence of any special agreement at this time these plaintiffs, upon the production. of a purchaser or customer ready, willing and able to make the exchange as contemplated, became entitled to the commission agreed upon, to wit, one per cent less the fifty dollars for a present to the defendant’s ' wife. Nor could the plaintiffs be- deprived of their commission by reason of any caprice or humor of the defendant if the other party came within the requirements as stated.
. This being the law, in the absence of some special agreement, thé plaintiffs were entitled to recover. On th.e trial, however, *646the defendant offered in evidence the following agreement, dated November .10, 1893, which was admitted :
“ No commissions to be paid to us by Geo. Hornberger unless deeds to said premises pass, unless Hornberger’s title should prove on examination unmarketable, in which event he is to pay the commission, to wit, $400. ■
“ Dated, November 10,• 1893.
“ E. B. Potash,
“ Max I. Lefkowitz,
“ Jos. MoSkowitz,
“ A. Roll.”
We think this- agreement' was without consideration and ■ . thus- null and void, and' did not destroy the plaintiffs’ cause of action. Where under the. original agreement the broker is entitled to his commission when he has produced a purchaser ready, willing and able to enter into- a contract, a subsequent agreement by the broker, in consideration of the execution of siich contract, not to claim or demand commissions until delivery of the deed is without consideration and cannot affect .the obligation of the vendor to pay them. McComb v. Von, Ellert, 7 Misc. Rep. 59.
This contract of November 10, 1893, being void, left the plaintiffs to pursue their remedy on the same cause of action pleaded. But the plaintiffs, disregarding the fact that the contract just spoken of was void, and accepting it as a valid and binding obligation,-proceeded to try the case, not on the cause . as set up in the pleadings, but asked and obtained leave against objection and exception to amend the complaint in an effort • • to meet this void agreement. This was in our judgment error, since it was proceeding upon an entirely distinct and different causé from that alleged in the complaint, and a recovery here cannot-.be claimed as seov/ndum allegata et pro- - bata. It is apparent, too, that:the justice,- in rendering his decision,, based it entirely upon the agreement which we have declared void. The original cause of action was to effect an exchange of the defendant’s property for certain property in Twelfth street. - It was immaterial in the absence of a special *647agreement as between plaintiffs and defendant, and-is of no-consequence, whether defendant’s title was marketable or not, but it was important and material before the plaintiffs could recover to show that the purchaser or customer whom they produced to the defendant was able and competent to make the contract of exchange, or, in other words, that the title of their customer'was good and marketable. We think the trial justice erred in rejecting the evidence offered by the defendant to show that the title of the customer whom the'plaintiffs produced was not a good or marketable one, and that he was not the owner or had the right to exchange the property which he offered in exchange for the defendant’s. As to the ownership yi fee simple by Kempner of the premises in East Twelfth /street, we do not think it material if it is shown that Kempner had the control of the same, although in the name of one Solomon Miller, who, in accordance with the directions and instructions of Kempner, entered into * the ■ agreement of exchange for the premises in question and without objection by the defendant. The exchange was to be a substantial one, not in the name, but in the property and land in question, and for which this defendant agreed to give plaintiffs their com'mission. The right to show that the customer produced by the plaintiffs was not the owner and did not have title, as well as that the same was unmarketable, was certainly a condition precedent before the plaintiffs could recover.
Without passing upon the other questions raised, we deem these errors sufficient. The judgment is, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Wyck, Ch. J., and Scotchman, J., concur.
Judgment reversed and new trial ordered, with costs to" appellant to abide event.