an award as to the greater part of the property, that the balance was of little value was not sufficient to justify the court in permitting plaintiff to disregard the agreement.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1514; Dec. Dig. 511.*]

Appeal from Special Term, Westchester County.

Action by Rosalynde De Lima Mayer against Cyrus P. Jones, William R. Smith, and others. From an order directing the immediate sale of land under a foreclosure judgment, defendant Smith appeals. Reversed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

William R. Smith, in pro. per.

Woodson R. Oglesby, for respondent.

BURR, J. This action was brought in July, 1907, to foreclose a mortgage on lands in North Castle, Westchester county. The answer of the defendant Smith raised an issue with reference to the right of the plaintiff to effect insurance against loss by fire upon a building upon the property and as to the amount paid for the same. In other respects the answer was frivolous. In order to facilitate the entry of judgment without a trial, on the 8th of January, 1908, a stipulation was entered into by which the plaintiff was permitted to include in the amount to be found due under the mortgage the sum of $167.45, claimed to have been paid for insurance, and to include in the costs certain sums claimed to have been paid for a survey of the premises and for various searches made with regard to unpaid taxes on the premises, which amounted in the aggregate to $350, as appears from the bill of costs as taxed and made a part of the record.

As to the survey, it was not a necessary part of the costs of the foreclosure. A reasonable amount expended for searches for taxes might have been included by the referee in his expenses of sale, provided a sale was had; but it formed no part of the costs of the foreclosure for which judgment might be entered. In consideration of this stipulation on the part of the answering defendant the plaintiff agreed in effect to suspend the sale of the premises until the commissioners of appraisal, who had been appointed to determine the value of a portion of the property which was being taken by the city of New York in connection with its water supply, had made their award and the same had been confirmed, not exceeding however, 18 months. Thereafter, and on January 20, 1908, the plaintiff entered judgment in accordance with the stipulation. This stipulation, which has been fully executed on the part of the defendant Smith, amounted to a contract between the parties. The 18 months have not yet expired. The plaintiff now seeks to set aside this contract.

There is no claim that it was improvidently made, or that any fraud or mistake occurred in connection therewith; but the plaintiff asks the court to permit her to disregard this contract and to order an immediate sale of the premises, because, as she claims, the commis

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

sioners have made an award as to the greater part of the property, and that portion thereof as to which the commissioners have as yet made no award is of comparatively little value. If this were so, it would be an insufficient reason to justify the court in permitting plaintiff to disregard her agreement. But the answering affidavit used upon this motion states that the land for which the commissioners have as yet made no award consists partly of a piece of swamp land and partly of land lying in the streets or roads which have been laid down upon a map of the property covered by the said mortgage. Apparently these are only mapped streets, and the fee of the said land is in the defendant Smith. According to the statement in his affidavit, which is not contradicted, the land in the streets is equal in amount to nearly 100 city lots. The defendant Smith states that in his opinion such land is worth several thousand dollars, and, if it is of equal value with that which seems to have been placed upon the abutting lots, such land is worth between $4,000 and $5,000.

Inasmuch as the right to a stay is a right substantial in character, the parties should be held to the terms of their agreement, and a sale should not be permitted until the expiration of 18 months from January 8, 1908, or until the commissioners' award as to the residue of the land to be taken, if made within that time, is confirmed.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

KALKSTEIN v. JACKSON.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) 1. BROKERS (§ 53*)-COMPENSATION-SUFFICIENCY OF SERVICES.

Though it is not essential to entitle a broker to commissions for making a sale, that he should have introduced the purchaser to the owner, or even have known the purchaser, or that the owner should have known that the broker caused the sale, the broker must show affirmatively that the purchaser was induced to buy through the means employed by him.

[Ed. Note. For other cases, see Brokers, Cent. Dig. 74; Dec. Dig. § 53.*]

2. BROKERS (§ 88*)-ACTIONS FOR COMMISSIONS-JURY QUESTION-CAUSE OF SALE.

In a broker's action for commissions, whether plaintiff was the procuring cause of the sale held for the jury.

[Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 128, 129; Dec. Dig. § 88.*]

Appeal from Trial Term, Kings County.

Action by Harry Kalkstein against Samuel Jackson. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial granted.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Walter J. Rosenstein, for appellant.

Edward W. S. Johnston, for respondent.

JENKS, J. The defendant appeals from a judgment against him for broker's commissions on the sale of defendant's real estate. The plaintiff complains that the broker under his employment produced Ritter as a purchaser, who was accepted, and that the defendant thereupon entered into a contract of sale with Ritter, or with Berkowitz, acting for her, or with them both, whereby the commissions were earned. The answer was a denial. The learned court, under exception, gave the final instruction to the jury that the plaintiff brought a purchaser who made a contract and carried it out, and that Berkowitz was, "for the purpose of brokerage, Ritter," and added:

"The crucially grave question is whether Jackson, the defendant, was innocent of knowledge that Berkowitz, the actual signer of the contract, was doing it in the interest of himself and Ritter."

I think that the learned court went too far thus to instruct the jury in effect that the plaintiff had been the efficient cause of this sale, instead of submitting the question to it. The evidence established the employment and the production of Ritter as a purchaser, and that there were negotiations between them looking to the execution of a written agreement. But it appeared that such an agreement was never executed. Shortly afterward Berkowitz was brought to the attention of the defendant through an outside source, and apparently on his own account and in his own name, without there being an indication of the hand of the broker in the affair, made the agreement with the defendant which resulted in a sale to Berkowitz alone. The evidence of Berkowitz is that this opportunity was brought to him by the Ritters alone, that he was put forward to act for himself, and the Ritters who were secret joint venturers with him. Those facts did not establish conclusively (and thus outside of the province of the jury) that the broker was the procuring cause of the sale to Berkowitz. Although it is not essential that the broker should have introduced Berkowitz to the defendant, or even have known Berkowitz, or that the defendant should have known, had it been the fact, that the broker was the producing cause of the sale to Berkowitz, yet it "must affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker." Metcalfe v. Gordon, 86 App. Div. 368, 83 N. Y. Supp. 808; Sussdorff v. Schmidt, 55 N. Y. 319; Wylie v. Marine National Bank, 61 N. Y. 415.

The mere fact that the broker had originally produced Ritter as a purchaser was not in itself enough to establish conclusively that the broker was the procuring cause of the sale to Berkowitz, under the circumstances of the case; for the jury could have found that, even though the broker thus "planted the very seeds," he did not establish his right to "the harvest." Sibbald v. Bethlehem Iron Co., 83 N. Y. at page 383, 38 Am. Rep. 441.

I advise that the judgment and order be reversed, and that a new trial be granted; costs to abide the event. All concur.

In re WEAR'S WILL.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) 1. WILLS ( 181*)-REVOCATION-EXPRESS REVOCATION.

A second will, which contained a revocation clause, operated to revoke the prior will.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 459; Dec. Dig. § 181.*]

2. WILLS (8290*)-REVOCATION-LOST WILL-PRESUMPTION OF REVOCATION. If a will was in testator's possession and could not be found after his death, it is presumed that he destroyed it with the intention of revoking it. [Ed. Note. For other cases, see Wills, Cent. Dig. § 663; Dec. Dig. § 290.*]

3. WILLS ( 198*)-REVIVAL-DESTRUCTION OF REVOKED WILL.

The destruction of a second will containing a revocation clause, with the intention of revoking it, will not reinstate the former will.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 497; Dec. Dig. § 198.*]

4. WILLS ( 296*)-REVOCATION-EVIDENCE-EXECUTION-ATTESTING WITNESS. Code Civ. Proc. § 1865, requiring the provisions of a lost will presented for probate to be established by at least two credible witnesses, does not prevent proof that a second will revoking a former will was executed and left in testator's possession, so that, in proceedings to probate a will, the execution and delivery to decedent of a second will revoking the first could be proved by the attorney who drew and witnessed both wills, in order to show that the will offered was not testator's last will.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 674; Dec. Dig. § 296.*]

5. WILLS ( 303*)-PROBATE-PROOF OF EXECUTION-TESTIMONY OF ATTESTING WITNESS.

One who witnessed a will could prove its execution, if the other subscribing witnesses were dead.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 715; Dec. Dig. § 303.*]

Appeal from Surrogate's Court, Kings County.

In the matter of the probate of the will of John B. Wear, deceased. From a decree denying probate to a will, Frank M. Wear appeals. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Louis Mathot, for appellant.

H. F. Lawrence, for respondent.

WOODWARD, J. On the 18th day of June, 1900, John B. Wear executed a will. This will was drawn by his attorney, George Eckstein, who became one of the subscribing witnesses; Mrs. Levina M. Carew being the other witness. This is the will which has been rejected, on the offer for probate. In September, 1904, the decedent met his attorney, Mr. Eckstein, and requested him to draw a second will. The latter took the will of June, 1900, containing a revocation. clause, to his office, and with that will before him drew a new will, which disposed of all of decedent's estate and contained a revocation

clause. This new will was duly executed; the witnesses being George Eckstein (who witnessed the prior will) and George H. Smith, the decedent's family physician. This new will was taken into possession by the decedent after it was executed on the 15th day of September, 1904. On the 29th day of February, 1908, the decedent died, leaving a widow, three sons, and a daughter. The will of June 18, 1900, was offered for probate by one of the sons, and objections were made to its probate by the daughter. George H. Smith, the second subscribing witness to the will of September, 1904, died on the 7th day of September, 1908, two weeks before the hearing on the citation. It was shown that Frank M. Wear, the proponent, had made a search for the will of September, 1904, but had failed to find the same. There seems to be no question that the second will, if established, operated to revoke the will of June 18, 1900, and that, having been in the custody of the testator and not found after his death, the presumption arises that it was destroyed by him with the intention of revoking the same, and that this does not operate to reinstate the former will.

The objection urged on this appeal from the decree of the surrogate refusing probate to the first will is that the proof offered and received of the execution of the second will is inadequate. The appellant contends that the proof must be of the character required by sections 2621 and 1865 of the Code of Civil Procedure, entitling a lost will to probate. The requirement of this section is that the provisions of such lost will must be established "by at least two credible witnesses, a correct copy or draft being equivalent to one witness." We are of the opinion that this contention cannot be sustained. It is one thing to admit to probate a will disposing of a man's estate where the will cannot be found, and quite another thing to merely establish that a second will, revoking a former will, has been duly made and executed and left in the possession of the decedent. In the one case we are assuming to dispose of property in a manner different from that prescribed by law in the absence of a will, while in the latter case we are merely permitting the property to descend in the manner which the law designates. In the case now under consideration the execution and delivery of the will to the decedent was proved by Mr. Eckstein who drew both wills, and who was a subscribing witness in both of them. He would have been entirely competent to have proved the execution of the will, if it had been found, the remaining subscribing witness being dead; and he was equally competent to prove the execution and delivery of the will to the decedent, not for the purpose of establishing a lost will, but to show that the will offered for probate was not the last will and testament of the decedent, and that such an instrument was executed and left in such a custody that the presumption is that it was destroyed with the intention of revocation, with the result that the decedent died intestate. We are of opinion that the authorities relied upon by the learned surrogate support his conclusions, and that the decree refusing probate to the will of June, 1900, was properly made. The decree appealed from should be affirmed.

Decree of the Surrogate's Court affirmed, with costs. All concur.

116 N.Y.S.-20