July Term, 1900.
Judgment of the Municipal Court affirmed, with costs.
The defendant appeals from a judgment of a Municipal Court in favor of plaintiff for a broker's commission. Through the offices of plaintiff the defendant, after examination of a certain parcel of land, executed a contract with a third party to exchange his realty for the said parcel. The defendant agreed to pay to plaintiff a broker's commission of fifty dollars. The defendant refused to execute the contract for the reason that a frame house on adjacent premises sagged over the lot. There is no contention that the plaintiff assumed "to execute the executory contract of exchange," or that his commissions were dependent upon execution. Therefore, the case is within the principle of Knapp v. Wallace ( 41 N.Y. 477), Kalley v. Baker (132 id. 1), Gilder v. Davis (137 id. 504). Diamond Co. v. Hartley (89 N.Y. St. Repr. 994), cited by the appellant, does not apply, for there the court determined that there was an entire absence of evidence that the parties to the transaction ever reached an agreement. The judgment must be affirmed. All concurred.