By the Court,
Sutherland, J.
It would seem to follow from the decision of this court, in Glentworth v. Luther, (21 Barb. 145,) and of the common pleas in Holly v. Gos *530ling, (3 E. D. Smith, 262,) that the offer to prove that Hitchcock did not complete the purchase, in consequence of there being prior incumbrances, and of a defect in the title, was improperly overruled. These cases are to the effect that a broker or agent who undertakes to sell property for another for a certain commission, if he finds a purchaser willing to purchase at the price, has earned and can recover his commission, though the sale never was completed, if the failure to complete the sale was in consequence of a defect of title, and without any fault of the broker or agent.
[New York General Term,
February 6, 1865.
The evidence offered, then, in this case should have been received, for it went to show that it was’ not the fault of the plaintiff’s-assignor that the sale was not completed.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
Ingraham, Clerke and Sutherland, Justices.]