(dissenting). Plaintiff at law seeks commissions from defendant claimed to be due him under a written contract providing that defendant would pay plaintiff’s assignor, as broker, a commission of “ 3y2% on the hire to be earned under the Oslo Charter * * * ”. By reason of defaults on the part of the original charterer, Eastern States Co., the Oslo charter was “ cancelled ” and a subcharter, the Houston charter, was substituted in all respects for the Oslo charter. The broker had nothing to do with procuring the Houston charter and there was no arrangement to pay commissions to any broker under the provisions of that charter.
*35No claim is made that the Oslo charter was cancelled in bad faith or in a fraudulent effort to cheat the broker out of his commissions.
On the equivalent performance doctrine, or the receipt by defendant of the amount by which it would have profited by performance of the Oslo charter, it is now said the broker has the right to recover commissions on the hire paid under the Houston charter to the extent of the amount of hire that was provided for in the Oslo charter.
In Caldwell Co., Inc., v. Connecticut Mills Co. (225 App. Div. 270, affd. 251 N. Y. 565) the buyer breached the contract and the dispute was settled by a payment of approximately $570,000. This court held that in view of the buyer’s breach, the defendant in that case had the right to cancel the contract procured by the plaintiff, and having done so honestly and without the purpose of defrauding the plaintiff of commissions, all right to commissions ceased. The decision of this court in that case was not based on the fact that the sum in settlement was less than might have been received had the contract been fully performed. That reason for recovery was expressly rejected by this court when it said: “ It is clear from these authorities that the plaintiff cannot rest upon the proposition that it is entitled to recover merely because the defendant has secured a benefit equivalent to performance of the contract.” (P. 278.)
In the present case it is stipulated that the broker did not procure the Houston charter and there was no agreement to pay any brokerage fees thereunder.
In a law action such as this, the broker is restricted to the contract made and the court may not benevolently add to it an equivalent performance clause not contained therein, thereby substantially increasing the rights of one party and the obligations of the other against the terms agreed upon between them.
In the Caldwell case, this court rejected both the rule now proposed and the reasoning on which it rests when it said: “We are not concerned, therefore, with any claim of fraud, nor may we predicate a judgment upon any general considerations of what would constitute equitable or generous treatment to the plaintiff. This is an action at law upon a written contract, and that contract is the charter of the plaintiff’s rights. It is quite beside the point for plaintiff to urge that inasmuch as the defendant has received the amount by which it would have profited by performance of the agreement, it should in good conscience pay the plaintiff what it would have had to pay him upon performance by the Fisk Rubber Company.” (P. 273.) This ruling was affirmed in *36the Court of Appeals. We should not now depart from it. By doing so we not only gratuitously increase the rights of this plaintiff and substantially increase the contract obligations of the defendant, hut we set a precedent on the basis ol which all other claims for commissions, including the frequent claims for real estate brokerage commissions, may be similarly increased beyond the contractual rights and obligations of the parties.
Accordingly, I dissent and vote for judgment in favor of the defendant.
Peck, P. J., Glennon and Van Voorhis, JJ., concur with Shientag, J.; Dore, J., dissents in opinion.
Judgment directed for plaintiff as prayed for in the submission, with interest and costs. Settle order on notice.