¶1Before a broker is entitled to commissions he must establish the fact that he procured a purchaser ready and willing to purchase the property for the price for which the broker was authorized to offer it for sale, or at a price acceptable to the owner, The evidence of the plaintiff is that he was-authorized to offer the property for $16,000, as he thought. At all events, it was for more than $15,000. The person whom he procured did not offer more-than $15,000 for the property, and the defendant refused to accept the offer. This terminated the transaction between the plaintiff and defendant. The defendant thereafter sold the property through another broker. It is contended by the plaintiff that, in the negotiations had with Mr. Hartshorn, there-was an acceptance of the offer by the defendant in these words, “I guess I’ll take it;” i. e., the $15,000. This was preceded, however, by a statement that he wanted more money, and concluded by a refusal to accept the offer. Mr.. Hartshorn acted upon this refusal as the ultimate conclusion of the defendant, and endeavored to procure terms which would be acceptable to the defendant,, in which he failed. The court may exercise the power to set aside a verdict, though no exceptions were taken, or motion made to dismiss. Goodenough v. Fuller, 5 N. Y. St. Rep. 896. The order will be affirmed, with $10 costs-to the respondent.
¶2Ehrlich and McGown, JJ., concur.