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App. Div.]

First Department, June, 1908.

ments, they were entitled to insist upon them, and if not acceded to the plaintiffs had not earned their commissions and are remediless.

Of course the broker's reward is contingent upon success. No matter how much time or how much effort he may put forth to accomplish a desired result, if he do not produce a customer ready, willing and able to take upon the terms propounded by the seller, his time has been wasted and his labor gone for naught. I understand that both parties accede to this proposition. The defendants' claim is that because the parties failed to sign a lease their minds never did meet.

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In Mooney v. Elder (56 N. Y. 238) GROVER, J., said: "We have seen that the plaintiff was entitled to his commission upon the production of a purchaser ready and willing to purchase the property upon the terms fixed by the defendant. The plaintiff was entitled to his commission upon the production of a purchaser ready and willing to purchase the property, although through the default of the defendant a sale was never effected."

In McQuillen v. Carpenter (72 App. Div. 595) it was held that the plaintiff, who had procured a customer able and willing to buy and to pay for the property the price which the defendant demanded, was entitled to his commission, although when the parties met for the purpose of executing a contract they failed to do so because of a requirement on the defendant's part that the contract should contain a provision permitting her to pay a small forfeiture in lieu of delivery of the deed should she so elect.

In Sibbald v. Bethlehem Iron Co. (83 N. Y. 378) it was said: "If the efforts of the broker are rendered a failure by the fault of the employer, if capriciously he changes his mind after the purchaser, ready and willing, and consenting to the prescribed terms, is produced, then the broker does not lose his commissions.

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And that upon the familiar principle that no one can avail himself of the non-performance of a condition precedent who has himself occasioned its non-performance."

In Martin v. Wermann (107 App. Div. 482) the court said': "The production of a responsible purchaser on terms which are satisfactory to the employer at the time the contract of brokerage is entered into is sufficient to entitle the broker to his commissions, APP. DIV.-VOL. CXXVI.

47

First Department, June, 1908.

[Vol. 126.

and he cannot be deprived of his right to them by a mere change of mind on the part of the vendor."

The right of the broker does not depend upon the execution of the completed contract. He must have failed to have brought the minds of the parties together. I think this record establishes the fact that the minds of the parties did meet upon every term and condition propounded by the defendants and that both parties regarded and stated that the transaction was then and there closed, and that the failure to subsequently consummate was entirely due to the defendants propounding new and unreasonable terms which had never been disclosed theretofore, either to the brokers or to the tenant. The brokers having done all that they were required to do had earned their commissions.

It follows, therefore, that the judgment and order appealed from should be reversed and a new trial ordered, with costs to appellants to abide the event.

HOUGHTON and Scorr, JJ., concurred; INGRAHAM and MCLAUGHLIN, JJ., dissented.

MCLAUGHLIN, J. (dissenting):

I do not disagree with Mr. Justice CLARKE as to when a broker becomes entitled to commissions. The law on that subject is thoroughly settled in this State, and the only difficulty is applying it to the facts in each case. That is the trouble in the case now before us, and I disagree radically with him as to the application of the law to the conceded facts. The brokers produced a proposed tenant, negotiations between whom and the defendants proceeded to such an extent that they orally agreed upon many of the material terms of the lease. But it is perfectly obvious that all of the terms were not agreed upon, and this must have been understood by all the parties when they separated on the 14th of December, 1905, for the purpose of having a proposed formal lease drafted and submitting the same to the attorney for the proposed tenant. All that their negotiations, in a legal effect, amounted to up to this time was an agreement to make a lease, provided they could agree upon the terms. Here was a very valuable piece of real estate, which was to be leased for a term of twenty-three years, with an option to the tenant to renew for forty-two years more, making sixty-five

App. Div.]

First Department, June, 1908.

years in all. The rent which the tenant was to pay for the first twenty-three years was $2,230,000, and he also, within three years from the beginning of the term, was to commence the erection of a building at a cost of not less than $300,000. To say that the oral negotiations which took place resulted in the meeting of the minds of the parties on the terms of the lease—which alone entitled the brokers to commissions seems to me to be in direct hostility to all the authorities bearing on the subject, including those cited in the prevailing opinion.

It does not appear that any suggestion was made in the oral negotiations as to when the building was to be completed; if it were to be insured, and if so, who was to pay the insurance; if destroyed by fire during the term of the lease, what was to be done, or what were to be the rights of the parties if the tenant failed to perform. Many other details which good business judgment would suggest as being necessary to be inserted in a lease for so long a term and involving property as valuable as this were not even mentioned. The parties did not agree as to all the terms of the written lease, especially as to what remedy the owners should have of regaining possession if the tenant did not erect the building within the time proposed the tenant insisting that the owners should have only a remedy in ejectment, but not in summary proceedings, and to this the owners would not agree.

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There was no capricious withdrawal from a bargain by the defendants, nor was there any agreement ever reached. The efforts of the brokers were ineffectual, the minds of the parties never met, and a contract was never made. The brokers, therefore, were not entitled to commissions, and the court properly directed the verdict.

The judgment appealed from should be affirmed.

INGRAHAM, J., concurred.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.

First Department, June, 1908.

[Vol. 126.

In the Matter of the Application of The CITY OF NEW YORK, Appellant, Relative to Acquiring Title, etc., to Spofford Avenue, etc., from Longwood Avenue to Tiffany Street and from Tiffany Street to the Bronx River, in the Twenty-third Ward, Borough of The Bronx, City of New York.

GUSTAVE S. BоEHм and EMPIRE DEVELOPMENT COMPANY,

Respondents.

First Department, June 5, 1908.

Municipal corporation - street opening assessment.

Assessments upon property for a street opening need not invariably follow the rule that the cost of the improvement for each block should be assessed on the property on that block.

And when it appears that part of the land benefited by the street was interior land to which there had been no access and that the rest of the property, already fronted on a macadamized street, each parcel of land should be assessed proportionately to the benefit sustained without regard to the block to block rule.

APPEAL by the petitioner, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1907, denying the petitioner's motion to confirm the report of the commissioners of estimate and assessment herein as to the assessment for benefit contained therein, and remitting the said report to the commissioners for revision and correction.

Thomas C. Blake of counsel [John P. Dunn and John J. Kearney with him on the brief], Francis K. Pendleton, Corporation Counsel, for the appellant.

Henry J. Welle of counsel [John H. Judge with him on the brief], for the respondent Empire Development Company.

Barclay E. V. McCarty of counsel [Jared G. Baldwin, Jr., and William II. Snowden with him on the brief], for the respondent Boehm.

App. Div.]

CLARKE, J.:

First Department, June, 1908.

This is an appeal by the city of New York from so much of an order of the Special Term confirming the final report of commissioners of estimate and assessment as to awards for land taken as denies the motion to confirm said report as to assessments for benefit and remitting the proceedings to the commissioners for revision and correction in respect to such assessments.

The object of the proceeding was to acquire the title to the real estate that now constitutes the bed of Spofford avenue between Longwood avenue and the Bronx river in the twenty-third ward in the borough of The Bronx in the city of New York. On November 12, 1901, the commissioners of estimate and assessment filed their preliminary abstract of estimate and assessment. By that preliminary abstract the cost of the proceeding was assessed upon the property deemed to be benefited thereby, and the commissioners assessed upon the property belonging to one of the respondents, Boehm, in that behalf the sum of $3,943.29. Subsequently, on December 30, 1901, the prior resolutions of the board of street opening and improvement of the former city that had directed the assessment of the entire cost and expense of the proceeding to be placed upon the property deemed to be benefited thereby, were amended by a resolution of the board of public improvements of the city of New York so as to impose forty per centum of such cost and expense upon the city, and the remaining sixty per centum alone upon the property so benefited.

Before the commissioners, however, had revised their preliminary assessments, in accordance with the resolution imposing forty per cent of the cost of the improvement upon the city, this court, in Matter of Grant Avenue (76 App. Div. 87), expressed the view that the proper method of assessing the cost of taking land for street purposes in New York city is to assess the cost of each block taken upon the property fronting thereon.

The commissioners, deeming that they were governed by that rule in the proceeding at bar, recast their assessments so that in lieu of assessing each parcel benefited in proportion to the benefit that it had actually received from the entire improvement, the cost of each separate block of land condemned in the proceeding was assessed upon the property alone that fronted thereon.

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