
    John Jackson, Respondent, v. Frederick Rode, Appellant.
    (New York Common Pleas—General Term,
    April, 1894.)
    Until an offer to take a lease of premises is unconditionally'accepted, or a proposed modification thereof is unconditionally assented to by the person making the offer, there is no agreement, and therefore no lease.
    Defendant offered in writing to take a lease of certain premises until April first of the following year at a certain rental, which was accepted with a request for a surrender by March twentieth, to which defendant refused to accede. Plaintiff’s assignor refused to recede from his request for a modification, and defendant then wrote, before the term commenced, withdrawing his offer, to which plaintiff’s assignor replied that he wrould hold him to the offer. Held, that there was no lease of the premises, as the minds of the parties never met.
    
      Appeal from a judgment for plaintiff rendered by the District Court in the city of New York for the eleventh judicial district.
    Action to recover damages alleged to have accrued from defendant’s breach of a contract of lease by his refusal to assume possession of the premises alleged to have been demised to him.
    
      Herbert J. Hindes, for respondent.
    
      George Hill, for appellant.
   Bischoff, J.

It is impossible upon attentive consideration of the evidence to conclude that a lease was at any time entered into between the defendant and plaintiff’s assignor. All the negotiations between the parties coneededly existed only in the correspondence between them. On October 13, 1893, defendant wrote to plaintiff’s assignor offering to accept a lease of the New Rochelle house from November 1,1893, to April 1, 1894, at the monthly rental of twenty-live dollars.

In response to this the assignor called at defendant’s residence, but failed to meet the latter. On October sixteenth defendant again wrote, referring to the occasion of the assignor’s •call, and expressing regret at not meeting him. In this last-mentioned letter defendant mentions the fact that he was informed by his wife that he (the assignor) had accepted his (defendant’s) offer of October thirteenth, and refers to the assignor’s expressed wish to have possession of the house surrendered to him on March 20, 1894, to enable him to proceed with contemplated decorations and repairs, to which proposed surrender, however, defendant refused to accede. On October seventeenth plaintiff’s assignor replied by refusing to recede from his proposal that the house be surrendered to him at the time mentioned, and on October twenty-third defendant again wrote, this time withdrawing his offer to accept a lease altogether. This last letter evoked a response from plaintiff’s assignor, which was to the effect that he would hold defendant to his offer of October sixteenth.

It is apparent that the minds of the parties never met; that they'had never fully agreed respecting the terms of any proposed lease, defendant insisting that it should endure until April first, and plaintiff’s assignor that it should expire on March twentieth. Consistently with his withdrawal of the -offer to accept a lease, defendant concededly never occupied the premises during any part of the proposed term. Until, therefore, defendant’s offer was unconditionally accepted by plaintiff’s assignor, or the latter’s proposed modification of the offer was unconditionally assented to by the defendant, there was no agreement, hence no lease, and before his offer was unconditionally accepted by plaintiff’s assignor it was competent to defendant to withdraw it. Schenectady Stove Co. v. Holbrook, 101 N. Y. 45.

. It was error on the part of the justice below to award damages in- any amount to the plaintiff, and as upon the facts the judgment must be reversed and the complaint be dismissed, it is unnecessary to examine other grounds of alleged error.

G-iegebioh, J., concurs.

Judgment reversed and complaint dismissed, with costs of this appeal and of the court below.  