SECOND DEPARTMENT, FEBRUARY TERM, 1899. [Vol. 38. chasers should have a proportionate reduction on account of the shortage of four and one-half inches. Mr. Dally refused to make any reduction in the price, and after arranging for another meeting about one week later, the meeting broke up. On the afternoon of that day a bill was sent to Mr. Hartley demanding $820 commission on the sale. Some further negotiations occurred between Messrs. Stern and Marks and the defendant, resulting in a refusal of Messrs. Stern and Marks to take the property at $82,000, and the refusal of the defendant to take less. At the trial the defendant moved, at the close of the plaintiff's case, for a dismissal of the complaint. This motion was denied and an exception taken. At the close of the entire case the defendant moved for a verdict by direction; this motion was also denied, and an exception taken. The plaintiff, to be entitled to recover in this action, was called upon to show that it had brought to the defendant a party who was able and willing to take the property at the defendant's terms. The defendant was the owner of a piece of property known as No. 17 West Thirtieth street, and this property was described in the deed to the defendant as having a frontage of twenty-five feet on West Thirtieth street. He was not seeking to sell this property; he made no representations for the purpose of inducing a sale so far as appears from the record, and no suggestion of the kind is made. He simply said that if the proposed purchasers wanted the particular piece of property of which he was possessed, they might have it for $82,000, and he caused his attorney, after negotiations, to draw a contract for the sale of such property. He gave no one any authority to change the terms of the proposed contract, nor did he undertake to sell anything more than the premises on West Thirtieth street, "being the premises now known as No. 17 West 30th street." The question of whether these premises were correctly described, in the absence of any fraudulent representations, has no bearing upon the question presented in this case. The plaintiff, under an implied contract, undertook to sell the property of the defendant, for which it was to receive a commission, and "the fundamental and correct doctrine is, that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to App. Div.] SECOND DEPARTMENT, FEBRUARY TERM, 1899. commissions does not accrue." (Sibbald v. The Bethlehem Iron Co., 83 N. Y. 378, 382, citing authorities.) "This, however," continue the court, "must be taken with one important and necessary limitation. If the efforts of the broker are rendered a failure by the fault of the employer; if capriciously he changes his mind after the purchaser, ready and willing, and consenting to the prescribed terms, is produced, or if the latter declines to complete the contract because of some defect of title in the ownership of the seller, some unremoved incumbrance, some defect which is the fault of the latter, then the broker does not lose his commissions." There is no evidence in this case that the defendant has not been 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 the amount under the terms and conditions which he imposed, which terms were neither capricious nor unreasonable. The question is presented in exactly the same light as though the property was correctly described, for it consists of all the premises known as No. 17 West Thirtieth street, and the mere fact that some one has made a mistake of four and one-half inches in the dimensions of the lot does not affect the contract between the parties to this action, which was that the plaintiff should "bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made," and this it has failed to do through no fault of the employer. If the proposed purchasers and the defendant had entered into a contract; if they had come to an agreement as to price and terms for this particular piece of property, and then the proposed purchasers refused to carry out their part of the contract because of any defect in the title of the premises, the plaintiff would be entitled to recover because it would have carried out its part of the contract. (Gilder v. Davis, 137 N. Y. 504.) But no such state of facts is shown. On the contrary, there is an entire absence of evidence of the parties to the transaction ever reaching an agreement which in any manner bound them. As was said in the case of Platt v. Kohler (65 Hun, 557, 559): "The plaintiff's right to payment depended upon his procuring a person ready and willing to contract in such a way as to be legally bound to perform. His service was incomplete until that was done. Nothing was accomplished of any benefit to the defendant, who could not compel SECOND DEPARTMENT, FEBRUARY TERM, 1899. [Vol. 38. Morgenthaler to perform, nor recover damages for non-performance, and nothing of subsequent occurrence changed the relations between the parties." Again, the court say: "But where the principal stands ready to perform, to enter into a contract on conditions he has authorized, and the party produced by the broker refuses to conform thereto by entering into a binding obligation, the broker has failed to effect the purpose of his employment; he has not found a person ready and willing to take on the agreed terms, and his principal is not liable for commissions." This case is cited with approval in the case of Feiner v. Kobre (13 Misc. Rep. 499), where the facts are in many respects analogous to those of the case at bar, and in Bennett v. Egan (3 Misc. Rep. 421), where the parties had entered into a written agreement to sell and to purchase, and had paid fifty dollars to bind the bargain, but the court held that the plaintiff was not entitled to commission because the contract between the parties was not one which bound the vendee. (See Kalley v. Baker, 132 N. Y. 1; Gilder v. Davis, 137 id. 504; Curtiss v. Mott, 90 Hun, 439.) The law of this case seems to be well settled; the plaintiff must be able to establish that it has produced a party able and willing to take the property offered by the defendant at the defendant's own terins; and to do this it must show that the parties to the transaction have reached an enforcible agreement as between themselves. The defendant authorized the plaintiff to sell a certain piece of property at a given price. The plaintiff has failed to produce a party who is willing and able to take this property upon the terms prescribed by the defendant, and it has not earned the commission which it seeks to recover. The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. All concurred. Judgment and order reversed and new trial granted, costs to abide the event. App. Div.] SECOND DEPARTMENT, FEBRUARY TERM, 1899. DELIA GARRISON, Appellant, v. EDWIN A. QUICK, Respondent. Chattel mortgage — right of a second mortgagee to take possession of the mortgaged chattel as against a first mortgagee. Where a person in possession of a watch, and holding a bill of sale thereof given to secure the payment of fifty dollars, joins with another in executing a chattel mortgage upon the watch, which mortgage is made subject to the claim for which he holds the bill of sale, such instrument is, in fact, a second mortgage, or rather a mortgage upon the equity of redemption, and nothing but the payment of the fifty dollars can divest the holder of the bill of sale of his title to and right of possession of the watch. APPEAL by the plaintiff, Delia Garrison, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 20th day of October, 1898, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the plaintiff's complaint. The plaintiff, being in possession of a watch which belonged to one Holian, and of which the defendant held a bill of sale to secure the payment of fifty dollars, the defendant and Holian executed a chattel mortgage to the plaintiff's attorney to secure the payment of ninety-seven dollars and six cents, which mortgage was, by its terms, expressly made subject to the defendai t's claim. On the same day the watch was delivered to the defendant under a receipt by which he agreed to redeliver it to the attorney if default should be made in the payment of the chattel mortgage. Default being made in the payment of the chattel mortgage, and the defendant having refused to redeliver the watch, this action was brought to recover the amount of the chattel mortgage. William Riley, for the appellant. Joseph F. Daly, for the respondent. Judgment affirmed, with costs, on opinion of DYKMAN, J., at Special Term. All concurred. The following is the opinion of DYKMAN, J., at Special Term: DYKMAN, J.: SECOND DEPARTMENT, FEBRUARY TERM, 1899. [Vol. 38. The defendant, Quick, held a bill of sale of the watch in question to secure the payment of fifty dollars and the watch was in his possession. Holding the bill of sale, he, with James Holian, executed a chattel mortgage upon the watch to the plaintiff to secure the payment of ninety-seven dollars and six cents. The mortgage was expressly made subject to the claim of Quick for fifty dollars for which he held the bill of sale of the watch. It does not appcar who owed the debt to secure which the mortgage was made, but presumably it was Holian's debt as there is no other apparent reason for his joining in the mortgage. The bill of sale to Quick for the watch, the agreement contained in the receipt of Quick to the plaintiff, and the chattel mortgage from Quick and Holian to the plaintiff, must be construed together, and the legal rights of the parties must be deduced from the transactions which they embody. In that view the position is this: Quick had the watch and a bill of sale for it as security for the payment of fifty dollars. That vested the absolute title of the watch in him, of which he could be divested only by the payment of fifty dollars. The chattel mortgage recognizes and reserves his rights, and the agreement refers to the mortgage. It is in fact a second mortgage or rather a mortgage upon the equity of redemption. The defendant could not, therefore, be required to surrender the watch until he was paid fifty dollars; nothing but such payment could divest him of his title and right of possession. It follows that this action must fail, and the complaint must be dismissed, with costs. WILLIAM H. HILTON, as Receiver of the KILMER MANUFACTURING Corporation — preference given by, in contemplation of insolvency accounts assigned Creditors of an insolvent stock corporation to whom its officers, after they have been advised that its affairs are in a desperate condition, and have taken steps to secure the appointment of a receiver, have assigned accounts of the corporation, are not entitled to retain their proceeds on the ground that they were made to take the place of accounts which had been pre |