The plaintiff sued for broker’s commissions, claiming that he secured a tenant to lease certain property of defendant. Plaintiff claimed that, in pursuance of an agreement with defendant, he notified the latter on Saturday *551evening, September 26, 1905, that he had secured a proper party who would lease the property at the agreed price, and offered to pay $100 as a deposit; that defendant said he did not want a deposit but arranged to meet the prospective lessee on the following Monday at two o’clock; that, as defendant failed to keep the appointment on Monday afternoon, plaintiff went to defendant’s house the same evening with his client Pagano and one Gagliano and his father, and then offered defendant the leases, and the agreed sum of $1,100 as two months’ advance rent. Defendant, however, refused to accept the leases or the money, but informed plaintiff that that morning he had secured another tenant at a better price. There is no evidence to show who this Pagano was, where he resided, or what his business was or any other fact or facts which might indicate that he would have been a satisfactory and reliable tenant. It appears, however, that the $1,100 to be paid as advance rent was drawn by the plaintiff from his own savings bank account and that he took the money out of his pocket when he produced it before the defendant at the latter’s house. Pagano was not produced on the trial. Mor does it appear that the leases alleged to have been submitted by plaintiff to defendanl (which defendant denies) were satisfactory to him. The plaintiff has not shown, in our opinion, by a preponderance of proof that there was any meeting of the minds of the parties in respect to the terms of any lease; that he has performed such services as entitled him to a commission as t broker, or such facts as precluded the defendant from his ordinary right to lease to another and to terminate at will a contract with a broker before a bargain was made by which the broker’s commissions might become fixed. Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 383, 384.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Gildeesleeve and Davis, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.