(dissenting). I am of the opinion that the judgment appealed from should be affirmed. Obviously the relationship between respondent and appellant was not one that is ordinarily implied between a principal and a real estate broker. Under the peculiar agreement between the parties here respondent was not obliged to bring negotiations to a successful conclusion. The record is silent as to who drew the agreement, but it is clear from its language that respondent was to be protected as to commissions if: (1) it entered into negotiations for a lease at the instance of the appellant; (2) that negotiations were pending when and if the agreement was terminated; (3) that appellant subsequently entered into a lease with the State. To these contingencies was inseparably wedded the legal principle that appellant was required to act in good faith so far as the respondent was concerned (Tanenbaum v. Boehm, 202 N. Y. 293; Goodman v. Marcol, Inc., 261 N. Y. 188).
Propositions 1 and 3 are undisputed, and the trier of the facts found as to proposition 2 that negotiations were pending at the termination of the management agreement. The evidence in my opinion sustains this finding, and if this finding is accepted respondent is entitled to recover on a contractual basis alone, although bad faith on the part of the appellant is implicit in the appellant’s posture that negotiations had terminated.
The term “ negotiations ” is a rather large and nebulous one, and under the agreement between appellant and respondent it cannot be tied to any specific proposed lease. The fact that appellant had refused a proposed five-year lease, on the trivial ground that it did not contain a forfeiture clause against the State, did not mean ipso facto that all negotiations were ended. Nor did the demand for possession of the premises in less than a month, which the appellant must have known it could not get, *153necessarily terminate further dealing. It should be noted in this connection that no express instructions to terminate negotiations were conveyed by the appellant to the respondent. The futile litigation instituted by respondent against the State had all the appearance of simply another phase of the large and nebulous term “ negotiations ” on the part of the appellant.
An inference is strongly suggested that all of these maneuvers were not intended by the appellant, at least in good faith, to terminate negotiations. It was obvious that the State could not be evicted. Moreover the State had advised appellant a long time before that it could not move in less than 18 months. Therefore it must have been reasonably clear that immediate possession would not be yielded and that the State would continue to occupy the premises under some sort of an arrangement. Hence the actions of the appellant, including the discontinuance of heat and other services, seem to have been designed to compel as favorable an arrangement as possible, and to better appellant’s bargaining position rather than a sincere desire to obtain possession of the premises. Proof of this rests in the fact that after the futile litigation and the ballyhoo had subsided the appellant made a lease with the State, retroactive to the date the management agreement was terminated, and on terms most advantageous to apellant. Under such circumstances it is unrealistic to say, with respect to respondent’s position, that appellant had terminated all negotiations for a lease with the State and was motivated solely by a desire for possession of the premises. The Trial Judge characterized the appellant’s acts as “tactical maneuvers ”, made in bad faith so far as the respondent was concerned, and correctly so I believe.
The judgment should be affirmed.
Bergan and Halpern, JJ., concur with Gibson, J.; Foster, P. J., dissents and votes to affirm, in a memorandum in which Goon, J., concurs.
Judgment reversed, on the law and the facts, and complaint dismissed, with costs to the appellant.
Settle order.