Misc.] Supreme Court, January, 1922. tioned in the complaint was for the sale of goods in excess of fifty dollars, that no agreement was ever made in writing and subscribed by the defendant; nor did the defendant at the time of the alleged sale accept or receive any part of the said goods or did defendant at any time pay any part of the purchase price. While there may be some question, from the language of this defense, as to whether the defense of the Statute of Frauds has been pleaded, because there is no requirement in the statute (Pers. Prop. Law, § 85), that the buyer at the time of the alleged sale should accept or receive any part of the said goods; but we will assume for the present that the defense is properly pleaded. By subdivision 3 of section 85 of the Personal Property Law, it is provided: "There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods." The defendant stated to two or three other potato growers that he had bought this boatload of potatoes from the plaintiff. This beyond any question constituted an acceptance of the load. By section 124 of the Personal Property Law it is provided that the place of delivery, in the case of a contract of sale of specific goods, which to the knowledge of the parties when the sale was made were in some other place, then that place is the place of delivery. Therefore, the canal boat, Malinda Reilly, was the place of delivery. By subdivision 3 of section 124 of the Personal Property Law, it is provided that where the goods at the time of the sale are in the possession of a third person, the seller has not fulfilled his obligation to deliver until such third person acknowledges to the buyer that he holds the goods on the buyer's behalf. Captain Reilly acknowledged to Supreme Court, January, 1922. [Vol. 117. the defendant that he held the goods on the defendant's behalf, and the defendant assumed dominion over them, stating to Captain Reilly that he would begin taking the potatoes off the boat either the next Monday or Monday of the week following that. In Outwater v. Dodge, 6 Wend. 397, the court says: "Thus, if the articles are ponderous, and not easily susceptible of actual delivery, and the vendee proceeds to exercise a right of ownership over them, by disposing of them, or giving orders and directions respecting them, this will justify a jury in finding a delivery and acceptance." In Bowe v. Ellis, 3 Misc. Rep. 92, the court says: "Proof of any act or acts from which it may be reasonably inferred that the seller has abandoned possession as owner, and that the purchaser has assumed it, is sufficient evidence of acceptance and receipt to take an oral contract of sale out of the Statute of Frauds, without further proof that the goods were actually transferred from one place to another." The letter of the defendant of December twentyseventh was conduct of the defendant showing his assent to becoming the owner of these specific goods; he in no wise repudiates the contract, except that he defers payment on account until he starts the unloading of the boat. If the defendant's answer is not sufficiently broad to plead the Statute of Frauds as a defense, then, of course, the action would be undefended. There has crept into this case in some manner not exactly clear to myself, a question of practice. In my charge to the jury, I say: "Now I am going away and I am going to allow you gentlemen to report your verdict to the clerk when you have agreed upon it." To this, no exception was made by either of the parties. After the jury had retired, I then stated to the attor Misc.] Supreme Court, January, 1922. neys: "The verdict may be received by the clerk in session, if you desire. You may take a recess until they come in, and then the clerk may adjourn it to Hudson Falls after the receipt of the verdict." No exception was taken to this by either of the parties. After the rendering of the verdict the defendant's attorney moved as follows: "The defendant moves to set aside the verdict on the ground it is contrary to law, contrary to and against the weight of the evidence, and on all the grounds mentioned in section 999 of the Code," in no wise objecting or excepting to the manner in which the verdict had been received. In Morris v. Harburger, 100 App. Div. 357, Mr. Justice Hatch, writing for a divided court, where the trial justice at the close of his charge had stated, that as he was about to leave the city, he would authorize the clerk of the court to receive the verdict of the jury, and the parties interposed no objection to this proceeding, the court says: "Were the question an original one, I should hesitate in holding that the parties were not estopped by consenting that the clerk receive and enter the verdict;" but the court reversed the judgment upon the ground that the court could not leave the trial and authorize the clerk to receive the verdict of the jury; that the consent of the parties did not cure such error and could not be delegated by the court to the clerk, even by consent. This doctrine was overthrown by the Court of Appeals in the case of Dubuc v. Lazell, Dalley & Co., 182 N. Y. 482, the court holding at page 487: "The absence of the trial judge when the verdict was received was at most an irregularity which the parties could and did waive." The motion for a new trial must be denied. Motion denied. Appellate Term, First Department, January, 1922. [Vol. 117. HARRY SUGARMAN, Respondent, v. HARRY FREEMAN, Appellant. (Supreme Court, Appellate Term, First Department, December, 1921, Term Filed January, 1922.) real estate broker must disclose purchaser commis A broker to sell real estate who refuses to reveal to his employer the identity of the proposed purchaser is not entitled to recover commissions. APPEAL by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, in favor of plaintiff. Isidore Faitt, for appellant. John T. Fenlon, for respondent. GUY, J. Defendant appeals from a judgment in favor of plaintiff in an action brought to recover broker's commissions for producing a purchaser ready, able and willing to buy defendant's property on defendant's terms. The employment is admitted, and the evidence shows that plaintiff obtained, but did not produce, a customer ready, able and willing to buy on defendant's terms. After repeated negotiations resulting in a modification of the terms satisfactory to defendant, the defendant demanded that the broker inform him who the proposed purchaser was. Plaintiff refused to divulge the name of his proposed purchaser. Plaintiff testified that he offered to bring the proposed purchaser to defendant's office; defendant testified that plaintiff made an appointment to do so but Misc.] Appellate Term, First Department, January, 1922. did not keep his appointment, and that he received no further communication from plaintiff. The duty of a broker is not merely the finding of a purchaser who is actually ready, able and willing to purchase on his customer's terms, but to produce him, to bring him into communication with his employer, so that the employer may enter into a contract of sale with the proposed purchaser, and may have an opportunity to determine, particularly where part of the purchase price is to remain on bond and mortgage, whether the proposed purchaser would be financially able to perform his contract, which would include payment of the mortgage when due. The refusal to reveal the identity of the proposed purchaser constituted a failure by plaintiff to perform his contract with his employer. "The general rule is well settled that a broker must act with entire good faith towards his principal, and he is bound to disclose to his principal all facts within his knowledge which are or may be material to the matter in which he is employed, or which might influence the principal in his action; and if he has failed to come up to this standard of duty he cannot recover." Howard v. McCredie, 198 App. Div. 49; citing Veasey v. Carson, 177 Mass. 117. The judgment must be reversed, with thirty dollars costs, and judgment directed in favor of the defendant, with costs in the court below. GAVEGAN and MULLAN, JJ., concur. Judgment reversed. 40 |