FIRST DEPARTMENT, DECEMBER TERM, 1874. Samuel W. Torrey, for the consideration of $1,200 an acre. It had been in the plaintiff's hands, as a real estate broker, for sale, previous to the time when the defendants finally sold it; and his evidence was, that it remained in that condition when the sale was made. But, according to his own statement, his employment was to sell at a particularly specified price, which was changed during the time he was employed, but never reduced to $1,200, the sum per acre for which the sale was finally made. The price at which he was first empowered to sell, was $1,500 an acre; and on the 25th day of September, 1869, that was reduced, by a written option for ten days, to the sum of $1,385 an acre; and, on the 21st day of July, 1870, the option was revived and extended, in writing, for the period of thirty days. These were the only changes shown, upon the trial, in the price for which the plaintiff was authorized to sell the farm; and no sale was agreed upon, and no purchaser procured who was willing to purchase the farm at either of those prices. From these facts, which are shown by the evidence which the plaintiff himself gave as a witness, he had no authority, at any time, to contract for the sale of the farm at a less price than $1,385 an That was the lowest sum for which he was ever authorized to make the sale; and his right to sell for that, or for anything less than the price of $1,500 an acre, the price originally fixed, was extinguished by the expiration of the thirty days for which the option was extended before the defendants sold it to Torrey for $1,200 an acre. acre. A sale for the price at which the plaintiff was empowered to sell, was in the nature of a condition, on which his right to commissions was, by the terms of his employment, rendered dependent. If he procured a purchaser for either of such sums, during the time he was at liberty to accept the one or the other, then his commissions would be earned, and a right of action created for their recovery. But until he did that, as long as he was not interfered with during the period fixed within which the sale could be made for the smaller sum, no such right accrued to him. To maintain a claim by him for his commissions, it was necessary that he should be able to show that he had either procured a purchaser for the property at the price he was empowered to sell, or that the defendants had deprived him of the opportunity to do so while the priviHUN-VOL. III. 20 FIRST DEPARTMENT, DECEMBER TERM, 1874. lege of selling for the smaller sum continued to exist. For, by the unwritten or general employment, no time whatever was fixed or designated, during which the plaintiff was authorized to sell at $1,500 an acre. That bound the defendants as owners, for no particular period of time; and for that reason it could not prevent them from making a bona fide sale of the farm at a less sum, in case they elected to do so, without incurring any liability for commissions to the plaintiff. All that he was entitled to under that employment, was a reasonable opportunity to find a purchaser at $1,500 an acre; and after he had failed to do so, and proved unable to sell for the smaller sum during the periods specified for that purpose, the defendants were at liberty to sell for less without becoming liable to the plaintiff for commissions. That resulted directly from the terms of the employment and their right to dispose of the property owned by them. They in no manner abridged or restrained their own right to sell, unless the plaintiff could sell for one or the other of the prices he was authorized to receive under the terms of his employment. By making a sale on such terms while the authority continued, he would become entitled to his commissions; but, as he failed to do that, no right to them was created. Such were the plain terms of his employment, and, as long as he failed to perform them, the defendants were under no obligation to pay him what they had agreed to pay, only as a compensation for performance. That was the import of the contract under which he was employed; and the propriety of the consequence deduced from it is sustained by authority. * These cases, as well as those relied upon by the plaintiff, require that the broker shall find a purchaser at the price for which he has been authorized to sell, where a specific price may be fixed, before he can lawfully demand his compensation, when he has not been prevented from selling by any improper interference of the owner during the time allowed to effect a sale. The relation is one of contract, requir ing the application of the same legal principles as control the rights of parties under other similar agreements. The plaintiff not only did not sell for either of the prices desig * Jacobs v. Kolff, 2 Hilton, 133; Holley v. Townsend, 16 How. Pr., 125; Barnard v. Monnot, 33 id., 440; Doty v. Miller, 43 Barb., 529; Briggs v. Rowe, 4 Keyes, 424. FIRST DEPARTMENT, DECEMBER TERM, 1874. nated, but, beyond that, it did not appear that there was the least probability of his ever doing so ; and as long as that was the case, and by the terms of his general employment, no time was fixed during which he could have the privilege of selling after the last written option expired, the defendants themselves were under no obligation to him preventing them from selling their farm for a lower price, as long as that was not a mere device to avoid the payment of the plaintiff's compensation. And that it was not a device of that nature, was clearly shown upon the trial; for Torrey, who was called as a witness and examined on the plaintiff's behalf, testified that he positively refused to buy the farm of the plaintiff at the lowest price for which he was authorized to sell, and that of his own motion he afterward applied to, and negotiated with, the defendants for its purchase, and finally obtained it at the price of $1,200 an acre, which was $185 less per acre than the smallest sum at which they authorized the plaintiff to sell it. This evidence was uncontradicted; and, as long as it was in no respect improbable, neither the court nor the jury were at liberty to reject it as unworthy of belief.* The evidence was insufficient to warrant a verdict in the plaintiff's favor, and the defendants' motion for a new trial ought, for that reason, to have been successful. But the particular defect in it previously mentioned was not presented on the motion for a nonsuit, nor in any request made to charge; and as it is the only one on which the plaintiff's case was sustained, and the legal theory of the charge was correct, the relief to which the defendants are entitled, is, to have the verdict set aside as against the assignee. The order appealed from should therefore be reversed, with costs of the appeal to abide the event, and a new trial ordered, on payment by the defendants of the plaintiff's costs and disbursements on the trial already had. DAVIS, P. J., and LAWRENCE, J., concurred. Ordered accordingly. *Newton v. Pope, 1 Cowen, 109; Dolsen v. Arnold, 10 How. Pr., 528; Lomer v. Meeker, 25 N. Y., 361; White v. Stillman, id., 541. FIRST DEPARTMENT, DECEMBER TERM, 1874. THE MERCHANTS' NATIONAL BANK OF THE CITY OF NEW YORK, PLAINTIFF, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF NEW YORK, DEFENDANT. Board of supervisors — liability of for tax illegally collected supervisors do not act as representatives of State in collecting 1863-construction of. State tax-board of The predecessor of the plaintiff was compelled to pay $29,502.14, the tax imposed for the year 1862, upon $1,701,000 of its capital, which was then invested in United States securities. Of this amount $15,221.38 were for the purposes of the city of New York, $7,492.71 for the county, and $6,788.05 for the State tax. The imposition of the tax having been declared illegal, this action was brought to recover the amount so paid. Held (1), that the plaintiff was entitled to recover the amount of the county and State tax; the State tax is a debt imposed upon the county at large, and the board of supervisors do not act as the representatives of the State in collecting it; (2), that the plaintiff was not entitled to recover the amount of the tax paid for the purposes of the city, for the reasons that the county had never received such amount, and that it has never been authorized to raise and pay the same to the plaintiff. Chapter 108, Laws of 1863, authorized the board of supervisors to raise such additional amount of money as might be necessary to supply any deficiency in the product of the taxes of the year before, as such taxes were based upon erroneous assessments; but it did not authorize them to raise money to reimburse what might thereafter be collected from the city on account of the tax being erroneous, nor to enable the county to pay claimants what they otherwise might recover from the city. (BRADY, J., dissenting.) MOTION for a new trial, on exceptions ordered to be heard in the first instance at the General Term. The predecessor of the plaintiff, the Merchants' Bank of the city of New York, was obliged to pay $29,502.14, that being the amount of the tax imposed for the year 1862, upon $1,701,000 of its capital, which was invested in government securities, and therefore not subject to taxation. The impost was declared to be illegal by the Court of Appeals. It appeared that $15,221.38 were levied and collected for the purposes of the city, $7,492.71 for the county, and $6,788.05 to pay the tax due to the State. Upon the trial the court ruled that the plaintiff was entitled to recover against the defendant the portions respectively collected for county and State purposes only, and a verdict was accordingly rendered. FIRST DEPARTMENT, DECEMBER TERM, 1874. John E. Burrill, for the plaintiff. E. Delafield Smith, for the defendant. DANIELS, J.: The conclusion maintained by Mr. Justice BRADY, that the plaintiff was lawfully allowed to recover a verdict for the amount of the tax imposed and collected for State and county purposes, is fully sustained by the reasons he has given in support of it. But those given for holding the county liable for the amount of the tax received by the city, are not as controlling. It is conceded that no such liability can be maintained, unless it has been created by chapter 108 of the Laws of 1863. And that concession was necessarily required, in consequence of the decision made in the case of the Bank of the Commonwealth v. Mayor, etc., of New York.* Whether the county can be properly rendered liable for the amount of the tax received by the city, must therefore depend entirely upon the provision made by that act. That does not expressly create the liability. It merely provides that the said supervisors "are also hereby authorized and required to order and cause to be raised, in the manner aforesaid, such additional amount of money as may be necessary to supply any deficiency in the product of the taxes of and for the year 1862, which were authorized to be levied and raised for city and county purposes, and which were based upon assessments which the Supreme Court of the United States have adjudged and declared to be in part erroneous."+ The amount authorized to be imposed and raised by this enactment, is by its terms expressly limited to any deficiency in the product of the taxes of the year 1862, in consequence of the adjudication that the taxes were in part erroneous. The object was to supply the county with the sum which on that account, was made deficient. The law so describes and declares it. It was not provided by this act, that the county should impose and collect additional taxes for the purpose of reimbursing what possibly might afterward be collected from the city on account of the tax being in part erroneous, nor for the purpose of enabling the county to pay claimants what they otherwise might possibly have the right to recover from the city. The theory of the act Laws of 1863, chap. 108. * 43 N. Y., 184. |