Majority
p. 180George T. Crombie et al., Resp’ts, v. Gertrude R. Waldo, App’lt.[1] (Court of Appeals, Filed January 31, 1893.)
Headnote
Brokers—Commissions.Plaintiffs undertook to procure for defendant a. lease of her real estate by certain school trustees. They did procure the execution of an agreement by said trustees, dated December 10, binding defendant to complete a school building by the next May, and the trustees agreed to take a lease if the building was erected in accordance with the suggestions of the superintendent, according to plans thereafter to be prepared by the architect named and approved by the superintendent, provided the latter approved the building after its completion. Held, that by merely procuring the execution of such a paper, the plaintiffs had neither procured a lease for the defendant, nor a valid agreement for a lease, and had, in no way, earned their commissions.
Appeal from judgment of the ¡New York superior court, general term, affirming judgment entered in favor of plaintiffs upon the verdict of a jury, and order denying defendant’s motion for a new trial.
The plaintiffs were real estate brokers in the city of ¡New York, and the defendant .owned certain real estate in that city. In June, 1889, the plaintiffs undertook to procure for her a lease of the real estate by the school trustees of the twelfth ward of the city of ¡New York, and they procured the execution of the following agreement by her and the school trustees:
“Agreement made this tenth day of December, in the year one thousand eight hundred and eighty-nine, between Gertrude B. Waldo, of the city of ¡New York, party of the first part, and the trustees of common schools for the twelfth ward of the city of ¡New York, parties of the second part, as follows:
“ The said party of the first part, for and in consideration of the agreement of the said parties of the second part hereinafter mentioned, hereby agrees to erect, in accordance wifh the suggestions of the superintendent of school buildings appointed by the board of education of the city of New York, and as per plans to be made by John P. Leo, architect, and approved by the said superintendent of school buildings, a four-story brick building upon the four lots of land owned by the said party of the first part, situate on the northerly side of Eighty-ninth street, between First and Second avenues, in the city of ¡New York, described together as follows: Beginning at a point on the northerly side of Eighty-ninth street,
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distant one hundred feet easterly from the' corner formed by the intersection of the easterly side of Second avenue with the northerly side of Eighty-ninth street, and running thence easterly along the northerly side of Eighty-ninth street, at least one hundred feet; thence northerly parallel, with Second avenue, at least one hundred feet; thence westerly, parallel with Eighty-ninth street, at least one hundred feet, and thence southerly, parallel with Second avenue, at least one hundred feet, to the point or place of beginning. Said building to be so erected by the said party of the first part at her expense, and to be completed on or before the first day of May, 1890, and approved by the said superintendent of school buildings.
“And the said party of the first part, for the consideration aforesaid, hereby further agrees that when the said building shall be so completed and approved of by the said superintendent of school buildings, she will then make and execute a lease to the said parties of the second part, of the said building and lots of land, for the term of ten years from the time of such completion and approval, at an annual rent therefor, to commence from that time, of eight thousand dollars and taxes, with the privilege to said parties of the second part of a renewal of said lease for an additional term of ten years, at the same annual rent and taxes, said lease and renewal to contain the usual fire clause.
“ And the said parties of the second part, for and in consideration of the foregoing agreement of the said party of the first part, hereby agree that if the said building is so erected and completed, as above mentioned, and is approved of by the said superintendent of school buildings, they will then, on their part, execute the said lease.
“In witness whereof, the said parties hereto have hereunto set their hands and seals the day and year first above written.
“ Gertrude R. Waldo, [seal.]
“John Whalen, [seal.]
“Wm. E. Stilling, [seal.]
“Leopold Wormser, [seal.]
“ Antonio Rashis, [seal.]
“Robt. E. Steil, [seal.]
“ Trustees of Common Schools for the Twelfth Ward of the City of New York.”
The plaintiffs claimed that they were entitled to commissions as brokers for procuring the execution of that agreement. The defendant refused to pay them, and then they brought this action to recover the commissions. The case was brought to trial before a jury; the plaintiffs recovered a verdict, and the defendant appealed from the judgment entered thereon to the general term and from affirmance there to this court.
Charles J. Buchanan, for app’lt;
J. C. Julius Langbein, for resp’ts.
The plaintiffs entered upon their employment to procure the school trustees to take a lease of the defendant’s premises and they cannot recover until they establish that they have earned
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their commissions either by negotiating a lease or procuring the execution of a valid and binding agreement for a lease. It is not sufficient that the trustees and the defendant were brought together in a negotiation unless that negotiation ended in a lease or a valid agreement for one. It is not claimed by the plaintiffs that a lease of the premises by the trustees was effected. But the claim is that they were entitled to their commissions because they procured the execution of the agreement above set out. That agreement was drawn by them without any direction or suggestion from the defendant. It appears to have been wholly their work and to have been the best agreement they could procure the school trustees to execute; and they procured the defendant to execute it upon their assurance that it would be effectual. It is very clear that it was of no value to the defendant, that it was practically ineffectual for any purpose, that it did not bind the school trustees; that it could not be enforced against them; that it could not be performed by her and that it was a practical nullity. It was dated on the 10th day of December. The building was to be completed on or before the 1st day of May following, and the proof is clear and undisputed that it could not have been completed within that time. No plans were drawn for the building and it was not then known what kind of a building would be required to be erected. It was to be erected in accordance with the suggestions of the superintendent of school buildings, and what they would be was not known. The building when completed was tobe approved by the superintendent of school buildings, and the school trustees were not bound to take a lease until the building was completed and such approval had been given. The cost of the building could not then be known. The school trustees agreed only to take a lease of the building in case it was erected in accordance with the suggestions of the superintendent, and according to the plans thereafter to be prepared by the architect named and approved by the superintendent,- and in case the building was approved by the superintendent after its completion. The contract was one which the defendant could not perform, and which she could not enforce. Neither of the parties stood in any better position than they did before it was executed. For merely procuring the execution of such a paper it cannot be said, either that the plaintiffs had procured a lease for the defendant or a valid agreement for a lease or that they had, in any way, earned their commissions.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur.