App. Div.] SECOND DEPARTMENT, FEBRUARY TERM, 1899. (Tallmadge v. East River Bank, 26 N. Y. 105), but the above is sufficient to support the action of the commissioner in his refusal to approve the plans for the building. It follows that the order should be affirmed, with ten dollars costs and disbursements. All concurred. Order affirmed, with ten dollars costs and disbursements. SAMUEL H. SIMON, Respondent, v. MARY E. SIMON, Appellant. Conversion - what possession is sufficient to sustain an action for, by a husband against his wife. Absolute, unqualified ownership is not necessary in order to authorize a person entitled to the possession of property to sue for its conversion, but there must have been possession of the property by the plaintiff or there must be an existing right to take immediate actual possession. Proof that a wife who, before her marriage, had been put into the possession of property purchased by her husband and placed in a store which he had rented in his own name, while in charge of the business, induced her husband to go to a foreign State to get some money, agreeing later to repay him the money which he had put into the business, which she failed to do, and that the husband on his return to New York found that she had changed the lock and ordered him to be ejected should he enter the store, and that when he demanded the goods or the money advanced, both were refused by her, establishes an assertion of ownership by the wife which in law amounts to a conversion, the husband having the right to take immediate actual possession of the property, and the question whether he was in such actual possession or not, is not material. APPEAL by the defendant, Mary E. Simon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1897, upon the verdict of a jury, and also from an order entered in said clerk's office on the 10th day of January, 1898, denying the defendant's motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department. Thomas F. Byrne, for the appellant. E. Conway, for the respondent. 38 85 50 579 SECOND DEPARTMENT, FEBRUARY TERM, 1899. WOODWARD, J.: [Vol. 38. This action is brought by the plaintiff, husband of the defendant, for conversion of certain goods. Originally defendant's sister was a party defendant, but having died since its commencement the action proceeded against the defendant alone. There is no question raised on the appeal as to the right of the husband to maintain this action, and the principal matters to which the attention of the court is directed are questions of fact, which have been determined by the jury in favor of the plaintiff, upon evidence clearly warranting such conclusion. There were two questions raised by the pleadings and tried in the case: First, "Was the plaintiff the owner of the property in question on the 18th day of July, 1895, and was he on that day in possession of it?" and, second, "Did the defendant on the 18th day of July, 1895, take and carry away that property?" The authorities in this State are agreed that absolute, unqualified ownership is not necessary in order to authorize a person entitled to the possession of property to sue for its conversion. A person entitled to the temporary possession of chattels for a particular purpose may maintain such an action. (Phillips v. McNab, 16 Daly, 150.) It is necessary that "there must have been possession of the prop erty by the plaintiff, or there must be an existing right to take imme diate actual possession." (Petrie v. Stark, 79 Hun, 550, 554.) The plaintiff in the case at bar had purchased the property of a third person, had removed it to a store in a different part of the street, which he had rented in his own name, and the defendant was put into possession, probably with the understanding that she should have the property on the repayment of certain sums of money which the plaintiff had advanced to put the business upon a paying basis. When the negotiation commenced the parties were not married; they were married subsequently, and the wife, in charge of the business, induced the husband to go into Pennsylvania, where he formerly resided, to get more money. Later she agreed to repay him the money which he had put into the business. She failing to do this, the husband returned to New York and found himself locked out, the wife having changed the lock on the door, and left orders with a sub-tenant to eject the plaintiff should he enter the store. On the day in question the plaintiff gained access to the store by App. Div.] SECOND DEPARTMENT, FEBRUARY TERM, 1899. means of the key of the sub-tenant; and, when the defendant entered, demanded the goods or the money which he had advanced; both were refused, defendant declaring that she would have nothing more to do with the plaintiff, and refused to allow him to accompany her to her flat. Whether the plaintiff was in actual possession or not is not material; he had a right to take immediate actual possession, and the conduct of the defendant in changing the lock and in ordering the plaintiff to be ejected was an assertion of ownership in the defendant which in law amounted to conversion. (Boyce v. Brockway, 31 N. Y. 490; Pease v. Smith, 61 id. 477; Laverty v. Snethen, 68 id. 522; Smith v. Smalley, 19 App. Div. 519.) Nor was it necessary that the defendant should have removed the goods or carried them away; it was enough to constitute conversion when she in this manner denied the right of the plaintiff to possession. "It is enough," say the court in the case of Pease v. Smith (supra)," that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it. No manual taking on defendant's part is necessary." Again, the court say in the same case: "The assumed act of ownership was inconsistent with the dominion of the plaintiffs, and this is of the essence of a conversion." The jury has found the facts necessary to constitute conversion, and there are no errors in the case requiring serious consideration. The judgment and order appealed from should be affirmed, with costs. All concurred. Judgment and order affirmed, with costs. C. H. DIAMOND & Co., Respondent, v. MARCELLUS HARTLEY, Appellant. Real estate broker's commissions — when not earned. An owner of premises who had evinced no desire to dispose of them, upon being approached by an employee of a real estate broker on behalf of parties desiring to purchase property in that locality, said that if the proposed purchasers wanted the property they might have it for $82,000, and caused his attorney, SECOND DEPARTMENT, FEBRUARY TERM, 1899. [Vol. 38. after negotiations, to draw a contract for the sale of such property, which contract was submitted to the proposed purchasers and their attorney, who pronounced it satisfactory. The proposed purchasers then asked that a clause be inserted giving them an option of allowing part of the purchase price to remain on mortgage. At this point the attorney for the proposed purchasers discovering that the property instead of being twenty-five feet front as described by the broker and in the contract, was, in fact, only twenty-four feet and seven and one-half inches, the proposed purchasers demanded a proportionate reduction on account of the shortage, which demand was refused. Further negotiations between the owner and the proposed purchasers resulted in a refusal of the latter to take the property at the price named, and the refusal of the former to take less. In an action brought by the real estate broker to recover commissions from the owner of the premises, Held, that the fact of the mistake in the dimensions of the lot, in the absence of any misrepresentations on the part of the owner, did not affect the contract between the owner and the real estate broker, which was that the latter should bring the minds of the buyer and seller to an agreement for a sale, and as to the price and terms on which it was to be made; That, there being no evidence that the defendant was not ready at all times to comply with his agreement to take $82,000 for the premises which he owned, or that the proposed purchasers were ready, able and willing to pay him that amount, under the terms and conditions which he imposed, it could not be said that the efforts of the plaintiff were rendered futile by the fault of the defendant; and that the plaintiff, having failed to produce a party able and willing to take the property upon the terms prescribed, had not earned the commission which he sought to recover. APPEAL by the defendant, Marcellus Hartley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1898, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order entered in said clerk's office on the 26th day of May, 1898, as amended by an order entered in said clerk's office on the 6th day of June, 1898, denying the defendant's motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department. Paul D. Cravath, for the appellant. William C. Breed [Henry II. Abbott with him on the brief], for the respondent. App. Div.] WOODWARD, J.: SECOND DEPARTMENT, FEBRUARY TERM, 1899. The plaintiff in this action is a broker, engaged in real estate transactions. One Cutner, an employee of the plaintiff, knowing that Messrs. Stern & Co. were desirous of purchasing a building in a certain location in New York, went to the defendant and asked if his house was for sale, and, if so, at what price. The defendant replied in substance that, while the property was not for sale, he would consider an offer. Subsequently he offered to accept $82,000 for the house, provided the transaction was closed on that day, November 12, 1896. While there was an understanding that the contract should be closed on that day, the purchaser did not appear. The negotiation was afterward resumed, and on the sixteenth day of November Mr. Cutner, accompanied by Messrs. Stern, Marks and their counsel, Mr. Amend, met in the office of the defendant, who had, in the meantime, caused a contract to be drawn up for the sale of the property. Mr. Hartley, the defendant, was present but a short time, leaving the matter to be arranged by his assistant, Mr. Dally. The proposed contract was submitted to Messrs. Stern and Marks, who handed the same over to their lawyer, who pronounced it satisfactory. Then Mr. Stern asked that a clause be inserted whereby the purchaser should have the option of allowing $45,000 of the purchase price to remain on mortgage for one year at five per cent. It was in evidence that Mr. Dally consented to the insertion of this clause, though it was disputed by him, and he also swore that he had no authority from Mr. Hartley to vary the terms of sale as set forth in the contract, and this was not further disputed. At this point the attorney for the proposed purchasers discovered in the abstract of title that the property, instead of being twenty-five feet front, as described by the broker and by the description contained in the contract, was in fact only twenty-four feet seven and one-half inches wide. It is not pretended that there was any fraud involved; the deed to the defendant described the property as having a frontage of twenty-five feet, and the maps of the city also showed the same frontage. Upon the discovery of this defect in the title, Mr. Dally took the contract and said he would have it altered so that it should describe the property as twenty-four feet seven and one-half inches wide. Mr. Marks said that the pur |