majority">Jenks, J.:

The plaintiff has recovered a judgment for broker’s commissions as on a sale of real estate. The evidence shows that the proposed vendor refused to execute the contract for sale unless the broker consented to the incorporation therein of the following provision: “ The vendor agrees that Ole E. Larson is the broker who has brought about this sale, and agrees to pay said broker his commission therefor, namely, 1%, when balance of cash amount to be paid is made and deed actually delivered.” It does not appear either that the balance of the cash amount was ever paid or that any deed was ever delivered; on the contrary, it appears that the proposed vendor forfeited the payment made on account of the contract by the proposed vendee. Before the plaintiff could recover he must show either that the contract was carried out as indicated, or that non-performance was the fault of the defendant. (Seymour v. St. Lukes Hospital, 28 App. Div. 119, and cases cited; appeal dismissed, 159 N. Y. 524.) This he did not do. The learned Municipal Court rested its judgment for the plaintiff upon Morgan v. Calvert (126 App. Div. 327). But the point decided in that case is that the vendor who had agreed to sell his property for a specific sum on a certain day cannot interpose, as a defense against the broker suing for commissions which the vendor had agreed to pay at the closing of title, his own wrong (his own defect in title) which prevented the closing thereof.

The judgment is reversed and anew trial is ordered, costs to abide the event.

Woodward, Gaynor, Burr and High, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

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