
    Benjamin Haase and Herman Samuels, Respondents, v. Heinrich Schneider, Appellant.
    Second Department,
    April 27, 1906.
    Principal and agent — real estate broker not entitled to commissions when parties cannot agree on terms of sale. .
    Although a real estate broker procures, a purchaser who is willing and able to pay this, price asked, he is not -entitled to commissions if the minds of the par- . ties do not meet and the sale is not consummated by reason of a lack of agreement as to the time when the transaction should be closed.
    Appeal by.the defendant, Heinrich Schneider, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiffs.
    
      
      Louis J. Halbert, Jr., for the appellant.
    
      Isidor Buxbaum, for the respondents.
   Woodward, J.:

This is an action to recover certain commissions alleged to be due to the plaintiffs for services in negotiating the sale of certain real estate. In Sibbald v. Bethlehem Iron Co. (83 N. Y. 378) it was laid down as a fundamental and correct doctrine “ that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commission's does not accrue,” and the authority of this case, or the correctness of the rule deduced, has never been questioned. (Donovan v. Weed, 182 N. Y. 43, 46.) In the case now before us it is conceded that the plaintiffs did not bring the vendor and purchaser to an agreement as to terms, and yet the plaintiffs have a judgment for the'full amount of their claim. What was done was to bring a purchaser who', we may assume, was ready, willing and able to pay the price demanded by the defendant, and it was proper to find from the evidence that the parties did reach an agreement as to the price. When, however, it came to drawing the contract there was a disagreement between the parties as to the time when the transfer should take place, as well as to other matters of detail, the defendant demanding that the title should be closed within a period of. about eleven days, and the purchasers insisting upon having thirty days in which to close the transaction, and to support the plaintiff’s contention that they were entitled to commissions under this state of facts, they were permitted to show an alleged custom in relation to the time of taking title, where no time had been agreed upon between the parties. It is doubtful if the defendant’s objection to the form of the question raises any question for review here, but we are clearly of opinion that even though there was such-a custom, it could not give -the plaintiffs any rights in this action. In order that the plaintiffs might recover in this action, it was necessary for them to show that the parties actually reached an agreement as to the terms and conditions of the sale, and this they have failed to do, because it appears that the parties never agreed to the conditions which the defendant named, and which he had a perfect right to insist upon. It might be that if at the time of the employment of the plaintiffs it was. agreed that the commissions should be. earned when- the latter had produced a party ready, willing and able to pay the price named by the defendant at that time, the defendant could not, by imposing other conditions; defeat their right to commissions but it. nowhere appears that any contract of employment, other than the customary and legal contract of brokerage, was ever entered into, or that the defendant named any terms which the plaintiffs were at liberty to-propose to purchasers which would bind the defendant further than as tb the price. But, as we have seen, something' more is required to earn commissions; the parties must be brought to an agreement, not alone as to the price, but as to the terms of' exchange, the time, of taking title and all the incidents of the transaction. The minds of the parties must meet in a contract, the details of which are worked but and understood- between them, and because the plaintiffs- have failed to show such a consummation of their labors, thé judgment appealed from must be reversed. '

The judgment should be reversed and a new trial ordered.

Jenks, Gaynor and Rich, JJ., concurred; Hirschberg, P. J., dissented.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  