
    Joseph C. Hough, Respondent, v. Clarence D. Baldwin, Appellant.
    (Supreme Court, Appellate Term,
    March, 1907.)
    Brokers — Compensation — Performance of duty by broker — Necessity of procuring binding legal contract.
    Where a person produced by a real estate broker as a purchase]1 of certain premises declined to sign a contract therefor unless there should be inserted a provision that, in case he should reject title on account of certain encroachments, which would not otherwise have constituted a ground for such rejection, his deposit should be returned in full for all claims, the broker is not entitled-to commissions, as the contract is thus rendered a mere option and he has not produced a party ready and willing to take the premises upon the terms proposed by the owner.
    Appeal by the defendant from a judgment of the - City Court of the city of Hew York entered in favor of the plaintiff upon the verdict of a jury and also from an order denying defendant’s motion for a new trial.
    Bushby & Berkeley (James C. Bushby, of counsel), for appellant.
    Steuer & Hoffman (Max D. Steuer and Henry A. Friedman, of counsel), for respondent.
   Davis, J.

This case came before this court on a former appeal, and a judgment in favor of the plaintiff was reversed and a new trial ordered. Hough v. Baldwin, 50 Mise. Rep. 546. The new trial was had and the plaintiff again recovered and this is an appeal from that judgment and from an order denying a motion for a new trial. The testimony on the new trial did not differ materially from that given on the first trial. The action is for broker’s commissions. The plaintiff claims to have earned his commissions for having ■produced a party ready and willing to exchange property with the defendant. It appears now that the party produced by the plaintiff would not sign the contract agreed upon the day before, unless there was inserted therein the provision, it is understood between the parties hereto that if the party of the second part rejects title on the ground of bay window or stoop ledge encroachments then the deposit paid herein shall he returned in full for all claims.” The contract was signed with this provision inserted. By this provision the exchange was made to depend upon the mere option of the plaintiff’s customer to take or not in case of these encroachments. The contract was thus not a binding, enforceable contract, and the party produced by the plaintiff was not ready and willing to take upon the terms proposed to the plaintiff. These encroachments would not have been a good ground for rejecting the title if there was not a special agreement to that effect.

Judgment reversed and judgment directed for the defendant dismissing the complaint, with costs in the court below and the costs of this appeal.

Gxldersleeve and Hendrick, JJ., concur.

Judgment reversed and judgment directed for defendant dismissing complaint, with costs in court below and of this appeal  