McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.
On motion of the defendant, summary judgment in her favor was entered in the Superior Court, Law Division, in an action brought by the plaintiff, a real estate broker, to recover $10,200 as commission on the sale of 118 acres of land, under an agreement dated April 1, 1948, as modified by agreement dated December 17, 1948.
The complaint alleged that on April 1, 1948, the defendant gave the plaintiff the following authorization in writing:
"I hereby authorize you to list for sale property owned by me in the Borough of Paramus for the sum of $127,500; terms cash, unless other terms are agreed to by me in writing.
I agree to pay you a commission in the event that you produce a buyer who contracts to purchase the property in accordance with this authorization and who actually takes title and pays the purchase price in accordance with such contract, which commission shall be at the rate of 5% computed on the purchase price of the property, and shall be payable if, as and when title actually closes and not otherwise.
The property which is the subject of this listing consists of approximately 118 acres lying along the southerly side of Century Road easterly from the intersection of Century Road and Paramus Road and along the easterly side of Paramus Road southerly from Century Road, excepting therefrom the dwelling house and curtilage at the southeasterly corner of Century Road and Paramus Road. The property is generally rectangular in shape, with a mesne depth from Century Road of 700-800 feet, frontage along Century Road of approximately 6500 feet and along Paramus Road of 400 feet, more or less.
There are two greenhouses, a barn, an adjacent building usable as house or office, and an old farm house on Century Road and other outbuildings on the property."
On December 14, 1948, the defendant, in consideration of a payment of $3,000, gave an exclusive option in writing to Suburban Centers Trust to purchase the premises in question, in which it was provided that if the defendant is unable to give title or to make conveyance as therein stipulated, the defendant should have 30 days within which to remove any defect in title; and if she should elect not to do so or fail to do so, then any payment made under the option agreement should be refunded.
The agreement of April 1, 1948, was modified in writing on December 17, 1948, as follows:
"If the option presently held by Suburban Centers Trust is exercised, she will pay to Alexander Summer Co., as broker, and as the only broker in the transaction, a commission of 8% instead of 5% of the purchase price, payable if, as, and when title closes, and not otherwise.
Should the option not be exercised, there is to be no commission of any kind on the option money of $3,000."
On March 15, 1950, the option given to Suburban Centers Trust was exercised by its assignee. On July 31, 1950, the assignee notified the defendant that it had learned, by having the title examined, that the seller was unable to give title or to make conveyance as stipulated in the agreement, by reason of a certain reservation contained in a deed of a predecessor in title of defendant, dated December 18, 1848, and recorded in the Bergen County clerk's office, which reservation is recognized in all subsequent conveyances by specific reference to the 1848 deed. In this 1848 deed, the grantor reserved out of the premises in question "the lot of land used as a burying ground 48 links on the northeasterly and southwesterly sides thereof and 35 links in width along the northwesterly and southeasterly sides ...