This action was instituted to recover brokerage commissions in connection with the negotiation of two leases in which Childs Company was the lessee. The premises known as 261 West Thirty-fourth street, New York city, were owned by the defendants George R. and Margaret Albright, whereas the property immediately adjoining and located at 263 was owned by the codefendant, Josephine K. Sheahan. Each of these properties had constructed thereon, a separate and distinct four-story building. The Albright property was incumbered with a mortgage in the sum of $50,000 which was held by the United States Trust Company. The Sheahan property was subject to a mortgage of $75,000 held by the Bank for Savings.
In the early part of 1935 the Childs Company requested Stephen B. Haynes, a broker, to make a survey of a number of locations in the city of New York, with a view to the opening of new restaurants.' Among the places he suggested were the premises owned by the defendants. He visited them and learned from the Albrights that they would be interested in renting their property on a long term lease, and he also ascertained from one William A. Blemly, who managed the Sheahan property, that it also could be rented for a term of years. Other premises in various parts of the city were submitted also by him to Childs Company. In June of that year Childs Company decided to let the matter of opening new restaurants rest in abeyance for the time being because of business conditions. Shortly thereafter Haynes went on a business trip to Europe. He returned to this country about December twentieth of the same year.
During the fall of that year Childs Company decided to go ahead with its expansion program. One of its officers, in the month of October, requested the plaintiff, in the absence of Haynes, to continue with the survey. The result was that one of the properties located at 735 Lexington avenue, which Haynes had submitted, was leased by the owner thereof to Childs Company and the plaintiff received its commission. Haynes, however, made no claim for the services he had rendered in connection with that lease.
The plaintiff, prior to the return of Haynes, opened negotiations with the defendants for the lease of their properties. While there is a dispute between the parties as to the amount of the original
During the course of the cross-examination, Kurcias was asked the following question: “ Q. Did you suggest going down to the bank, not only for the purpose of re-financing but finding out whether the bank would be satisfied with the proposition of tearing down the four-story building? A. I suggested they go down to the bank to see about the financing of it, because they told me they did not have the money.” The president of the plaintiff, I. Jerome Hiker, was cross-examined also as to . the same subject-matter. He testified, “ I was told by Mr. Kurcias that these owners said they did not have the money.” That the defendants were telling the truth in that regard is evidenced by the fact that later it became necessary for Childs Company to advance money to them in order to pay up past due interest, taxes and moving expenses.
Thus it will be seen that the offer which the plaintiff submitted to the defendants on behalf of Childs Company was conditioned upon the willingness and ability of the defendants to demolish their buildings and erect in place thereof one new building covering both plots.
The aggregate rental submitted by plaintiff for the twenty-one-year period amounted to $171,500 and, as we have seen, it would have been necessary for the defendants to defray the cost of demolition of the existing buildings and expend money out of their own pockets for the erection of a new one. There cannot be any question of the good faith on the part of the defendants since no contrary claim was advanced either in the complaint or the bill of particulars. Furthermore, as we have seen, the record shows that these defendants did not have the means to carry out the proposed tenant’s demands even though they were willing to do so.
Under the circumstances here detailed, the plaintiff did not bring about a meeting of the minds of the Childs Company and the defendants. In Sibbald v. Bethlehem, Iron Co. (83 N. Y. 378), Judge Francis M. Finch, referring to a broker, said: “ The duty he undertakes, the obligation he assumes as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement.” Judge Edward R. Finch in Baum v. Capital Realty Development Corporation (268 N. Y. 335) aptly expressed the same thought, in so far as it is applicable to leases, in the following language: “It sounds trite to reiterate that brokers’ commissions are earned when they produce a customer ready, willing and able to comply with all the terms fixed by the lessor. A meeting of the minds is essential not only on the price but on all the other terms of the contract.”
In submitting this case to the jury, the court in its charge said:
“ They say that after further efforts on both sides, finally Childs
“Now if that was what happened, then the plaintiff would be entitled to the commission because they then produced a tenant who was ready, willing and able to comply with the terms that the defendants had given them.”
Inadvertently the court, after submitting the figures which covered the twenty-one-year rental period, failed to direct the attention of the jury to the fact that the Childs Company offer was submitted upon the condition that the defendants would demolish their buildings and erect in place thereof a new one. Had the jury been apprised of the correct offer on the part of plaintiff, undoubtedly it would have been constrained, on the evidence introduced, to bring in a verdict for the defendants. While the attention of the court was not directed to this error by the attorney for the defendants, still we feel impelled to say that we deem the error of such importance in this case that we would have granted a reversal of the judgment and have ordered a new trial for that reason, even though there were no other substantial errors in the record. However, we are inclined to the view that the complaint should have been dismissed since plaintiff failed to bring about a meeting of the minds of the parties on the agreements to lease.
Since the officers of Childs Company determined to have Haynes act as broker, after plaintiff had failed to bring about an agreement between the parties, it cannot be said that these defendants were guilty of bad faith. (Sampson v. Ottinger, 93 App. Div. 226.) There is no charge that the defendants conspired with the tenant to deprive the plaintiff of its commissions. The fact of the matter is that there is no evidence in the record to indicate that prior to the time of the execution of the leases, the representative of Childs Company and the defendants ever met. The defendants in good faith paid the commission to the broker who consummated the deal and consequently they should not be compelled to pay it to another.
For the reasons assigned, judgment should be reversed, with costs, and the complaint dismissed, with costs.
O’Malley, Untebmyeb, Dobe and C allahan, JJ., concur.
Judgment unanimously reversed, with costs, and complaint dismissed, with costs.