Plaintiff sues for a commission earned by him as broker in producing to the defendant a person ready and able to lease a certain portion of premises owned by defendant for the term, purpose,, and rental specified by the defendant at the time he alleges that he was employed by it to secure such lessee. The complaint then proceeds to-allege that defendant proposed to the intending lessee a lease containing a clause, in substance, to the effect that if the proposed tenant should prove unsatisfactory to the landlord “in the conduct of his business,” the defendant might cancel the lease, without further liability, on five days’ written notice; that the proposed' lessee refused to-sign such lease; and that subsequently the defendant, through two of its directors and agents, the brothers Shubert, made a contract of employment with the lessee, engaging him as manager of a business established by these directors on behalf of defendant in the space which originally it had been proposed to lease as aforesaid, and that by reason of this “unfairness and bad faith” the proposed lessee was dissuaded and prevented from entering into the lease. The answer is a general denial. On these pleadings the plaintiff has obtained an order for the examination of the defendant as to the fact of the employment, and whether he was the procuring cause of the said proposed lease of the said premises, the alleged reason of the refusal of the- defendant company to sign the proposed lease, and the negotiations of the defendant with said proposed lessee. While the designation of these subjects is-rather inaccurate and vague, no serious objection is urged to that part of the examination.
The order, however, proceeds to require the defendant—
“to be examined as to the interests of said Lee Shubert and Jacob J. Shubert,. or either of them, in said defendant company, and the interests' of the defendant or the Shuberts in any business established in the premises proposed to be leased,” etc.
It is quite evident that these latter subjects, designated in the order as 4 and 5, are quite immaterial to the issues of the action. When plaintiff has established his employment and the fact that he produced a person able and willing to make a lease on the terms proposed, he will have maintained his right to a commission under the complaint. If, *13in defense, the defendant endeavors to show that the proposed tenant was unwilling to enter into a lease, the question will arise whether the lease proposed by defendant conformed to its terms as outlined to the plaintiff at the time of his employment, or, to be more concrete, whether the provision as to termination on five days’ notice was within the contemplation of the parties, that is to say, reasonable under the circumstances. It is impossible for me to conceive how either the willingness of the proposed lessee or the reasonableness of this provision can be proved, or any light shed thereon, by the fact that the defendant company either occupied the premises subsequently itself, or leased them to some other person, or employed the proposed lessee as manager therein. If the proposed lessee was willing to enter into a reasonable lease, the plaintiff has earned his commission. If he was not, or if the lease proposed by the defendant was unreasonable, it is quite indifferent what the defendant subsequently did with the premises or the proposed lessee. It is nowhere in the pleadings intimated that defendant claims to have discharged the plaintiff before the actual or substantial agreement of the principals; consequently, the 'citation by respondent of the case of Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 38 Am. Rep. 441, is without force.
The order appealed from should therefore be modified by striking therefrom the fourth and fifth items, and as modified be affirmed, with $10 costs and disbursements to the appellant to abide the event.
LEHMAN, J., concurs.