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[Vol. 17.

work, to the extent of $13.80, which they ought to have done under their contract, and deducted this sum from the contract price. This circumstance is made the basis for urging that the plaintiffs did not complete their contract, and should not, therefore, have recovered anything. The rule is that where there has been a substantial performance of a contract, and some item of work has been accidentally overlooked, a recovery may be had for the contract price less the expense of completing the portion undone. Smith v. Gugerty, 4 Barb. 614; Glacius v. Black, 50 N. Y. 145; Heckmann v. Pinkney, 81 id. 211; Nolan v. Whitney, 88 id. 648; Whelan v. Ansonia Co., 97 id. 293; Flaherty v. Miner, 123 id. 382; Van Clief v. Van Vechten, 130 id. 579; Miller v. Benjamin, 142 id. 615. It is where the contractor abandons his work (Crane v. Knubel, 34 N. Y. Super. Ct. 443; aff'd, 61 N. Y. 645), or there has been a willful or intentional departure from the contract, and the defects pervade the whole work (Phillip v. Gallant, 62 N. Y. 264; Woodward v. Fuller, 80 id. 316; Van Clief v. Van Vechten, supra), that the rule stated is inapplicable. There is nothing to justify the inference that the trifling amount of brick work left unfinished was other than an accidental omission, fully compensated for by the allowance made at the trial.

The appellants also object that the judgment is not in form against the property; hence the sureties are not liable, the condition of the bond being, in the language of the statute, for the "payment of any judgment against the property," the bond merely taking the place of the property, the same as moneys paid into court, or securities deposited after suit brought to foreclose the lien. The court, in Morton v. Tucker, 145 N. Y. 248, in reviewing the act under which the bond was given, said: "The sureties in the bond intended, and must be understood as undertaking, to pay the amount which should be adjudged was due and owing to the plaintiffs, and which was chargeable against the property by virtue of their notice of lien. In other words, the condition was for the payment of any judgment which might have been rendered against the property had not the bond been given." The court below found that the plaintiffs had acquired a valid lien upon the property, which lien was discharged by the bond; so that the event upon which the sureties were to be bound happened, and they were properly charged. If the form of the judgment required any amendment in this respect it was the subject of a motion in the court below, and cannot be heard in the first instance

Misc.]

Supreme Court, June, 1896.

upon appeal, as will be seen by reference to the cases hereafter referred to.

It is also objected that the judgment was radically wrong as to the five subsequent lienors whose claims existed against the plaintiffs, and whose liens should by the judgment have been made payable out of the moneys awarded. Laws 1885, chap. 342, § 20, as amended by chap. 420, Laws 1887; and see Cronk v. Whittaker, 1 E. D. Sinith, 647; English v. Lee, 63 Hun, 572. The evident object of the provision requiring that all lienors be made parties was that the court might determine the equities of each, to the end that on payment of the amount due by the owner and chargeable against the land, all the liens might be discharged therefrom. But no provision was made in the judgment of the court below for the payment to these five lienors from the recovery awarded the plaintiffs by the appropriation of sufficient thereof to satisfy said liens; and in case the owner satisfied the recovery, these five liens would remain of record unsatisfied against his property. The omission was evidently an oversight, which might have been corrected by motion made for the purpose; and this practice ought to have been observed, instead of presenting the matter here as an original question. Buck v. Remsen, 34 N. Y. 385; People ex rel. Oswald v. Goff, 52 id. 434; Marble v. Lewis, 53 Barb. 437, and cases collated in Gerber v. R. R. Co., 3 Misc. Rep. 429.

We find no merit in the exceptions; substantial justice has been done; and if the plaintiffs will file a stipulation that the judgment be amended by providing that the five liens filed by the workmen be first paid and discharged out of the moneys awarded to the plaintiffs (the same being more than sufficient for the purpose), the judgment as modified will be affirmed, with costs.

DALY, P. J., and BISCHOFF, J., concur.

Judgment modified and affirmed, with costs.

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WILLIAM HALPERIN, Respondent, v. WILLIAM E. CALLENDER,

Appellant.

(Supreme Court, Appellate Term, June, 1896.)

Agreement to divide commissions.

Plaintiff, being unable to procure a loan for a customer, procured the assistance of defendant under an agreement to divide commissions. No loan having been procured during the time limited by a contract with the customer, the latter refused to proceed in the matter, but subsequently made a new contract directly with the defendant, under which the loan was procured. Held, that the agreement to divide commissions fell with the termination of the first contract, and that plaintiff was not entitled to any part of the commissions on the loan which was procured.

APPEAL by defendant from affirmance by the City Court, General Term, of a judgment in favor of plaintiff.

A. M. Clute and G. S. Hamlin, for appellant.

M. E. Clarke, for respondent.

MCADAM, J. The plaintiff by his complaint, as amended at the trial, alleged in effect that he and defendant by their joint endeavors procured a loan for one Frank Goldman, for which the defendant received the sum of $350, and that by an agreement between the parties the defendant was to divide the commissions so received.

It appears that the plaintiff, a broker, discovered that Goldman wanted a loan, and being unable to place it himself introduced him to the defendant, also a broker, to assist in obtaining the money. The defendant insisted, before making any effort to procure the loan, that the plaintiff should obtain from Goldman. an agreement, whereupon the plaintiff obtained a writing in these words:

"October 26, '93.

"I agree to pay (2) two per cent. and legal disbursements to Wm. Halperin for securing a loan of $17,000 at 5 per cent. for 3 or 5 years on No. 1760 Third avenue, New York city, until Oct. 30, '93, 3 p. m., not to be held thereafter. Mortgage must be transferred.

"F. GOLDMAN."

The defendant was unable to obtain the loan within the time limited, but within three or four days thereafter found he could place it, and told the plaintiff to obtain the abstract of title. The plaintiff was unable to obtain the abstract, and at his request the defendant himself sent to Goldman for it; but Goldman refused to deliver it, and said that the contract had run out, and that he was not bound in any way to Halperin.

On December 13, following, Goldman made an application directly to the defendant for a loan. The defendant told him. he had secured the loan once, and was unable to get the papers, and did not want to go into the transaction again. Finally Goldman entered into a new contract directly with the defendant, as follows:

"I hereby agree to pay W. E. Callender $350 to cover all expenses for procuring loan of $17,000 at 5 per cent. on 1760 Third avenue, Dec. 13, '93

"F. GOLDMAN."

The defendant thereafter procured the loan and received the commission.

The question presented is whether the arrangement to divide the commissions made under the first contract applied to the second. We think not.

All rights and liabilities under the first contract expired by its terms October 30, 1893. The plaintiff and defendant ceased on that day to be the brokers of Goldman. He at the same time ceased to be their client, and was at liberty thereafter to make any arrangements he saw fit with either broker. To hold otherwise would be to acknowledge a sort of ownership in the customer by the broker, which no law can recognize.

The plaintiff contends that his agreement with the defendant continued indefinitely and applied to any loan made to Goldman on the same property, notwithstanding the limitation as to time. in the written contract with the owner. We cannot adopt this construction of the agreement. There is no evidence of fraud upon the part of the defendant in making the second contract with Goldman, and the circumstances under which it was made negative any inference that its purpose was to defraud any one. The limitation as to time in the original contract with Goldman was placed there by him before it was delivered to the defendant by the plaintiff, and the agreement to divide commissions had reference

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to that contract, for there was no other then in existence. The second contract was brought about by Goldman, not by the defendant, and was independent of the first and on different terms. The first contract having expired, and all efforts under it having in consequence been abandoned, Goldman was free to make any new arrangement he pleased, and there was nothing to prevent the defendant from becoming the sole party to it if he and Goldman were able to come to an understanding.

The cases hold that "the broker may devote his time and labor, and expend his money, with ever so much devotion to the interests of the employer, and yet if he fails, if without effecting an agreement or accomplishing a bargain he abandons the effort, or his authority is fairly and in good faith terminated, he gains no right to commission. He loses the labor and effort which was staked upon success. And in such event it matters not that after his failure, and the termination of his agency, what he has done proves of use and benefit to the principal. In a multitude of cases that must necessarily result. He may have introduced to each other parties who would otherwise have never met; he may have created impressions which, under later and more favorable circumstances, naturally lead to and materially assist in the consummation of a sale; he may have planted the very seeds from which others reap the harvest, but all that gives him no claim." Sibbald v. Bethlehem I. Co., 83 N. Y. 383; Wylie v. Bank, 61 id. 415; McClave v. Paine, 49 id. 561; Alden v. Earle, 121 id. 688.

When the plaintiff introduced Goldman to the defendant he took his chances as to the success of the loan to be procured under the first contract, and when it failed of consummation it left the plaintiff without any claim to compensation in any form. If the defendant had purposely allowed the time to pass and had then completed the transaction, he could not have deprived the plaintiff of his share of the commission, because the owner would have been held by his act to have waived time as of the essence of the contract. But that is not this case. The abandonment of the original contract was owing to the refusal of the owner to proceed further upon the ground that the time specified in the contract had expired, and the matter was effectually put to an end and was not revived until the owner six weeks afterward, of his own volition, called upon the defendant and induced him to undertake the procuring of the loan on his own account.