
    Bennett Williams, Appellant, v. Ida Ashner, Respondent.
    Second Department,
    September 10, 1912.
    Principal and agent — broker’s action for commissions — agreement that commissions shall not be paid unless lease be actually executed.
    A real estate broker employed to obtain a tenant waives any right to commissions unless the lease is actually executed where he executed an instrument under seal providing that he is not to receive any brokerage or commissions unless a lease between certain persons named ‘ ‘ is actually executed by both lessor and lessees.” This is so although except for said instrument he would be entitled to recover in that the owner refused to sign the lease after the broker had procured the tenant.
    It is not the province of the court to make contracts; it may only enforce those which have been made when they are within the law.
    Thomas, J., dissented.
    Appeal by the plaintiff, Bennett Williams, from a judgment of the Supreme Court in favor of the defendant, entered in the office Of the clerk of the county of Kings on the 15th day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 13th day of November, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Samuel D. Lasky, for the appellant.
    
      Alfred D. Lind, for the respondent.
   Woodward, J.:

The plaintiff’s assignors concededly entered into an agreement with the defendant’s husband, acting as her agent, under the terms of which said assignors were to be paid a commission of $800 for finding a lessee of certain premises in the borough of Manhattan. These assignors concededly produced parties ready, willing and able to enter into a lease for the premises upon terms which appear to have been reached substantially between the parties on the 16th day of December, 1909, except that it appears that upon that date the negotiations were • adjourned to permit of the drawing of an agreement for a surety for the money which was to be deposited under the terms of the lease. Defendant’s husband it appears had practically agreed to become surety for the deposit, which aggregated nearly $5,000. It is conceded on the part of the respondent that under ordinary circumstances the plaintiff would be entitled to recover in this action, the lease not having been executed because of the refusal of the defendant to sign the same, although the plaintiff’s assignors, on the refusal of defendant’s husband to become surety for the deposit, had 'offered to waive the surety. It is contended, however, that the ordinary rule is overcome by the agreements under seal which the plaintiff’s assignors executed before the terms of the lease had been agreed upon. The plaintiff put in evidence these agreements, which are two in number, one executed on the. 16th day of December, 1909, and the other on the twenty-first day of December of the same year: The first of these' agreements is in the following language:

“In consideration of the premises and one dollar paid it is agreed between Morris Damast, Joseph Ostroff and Louis Billoon and 8. Ashner that said Morris Damast, Joseph Ostroff and Louis Billoon are not to receive any brokerage or commission whatever unless a lease between said Ashner and Oohen and Klionsky is actuahy executed by both lessor and lessees, and the deposit therein provided for actually made, in which event only said Billoon, Damast and Ostroff are to receive the aggregate sum of eight hundred dollars in full of all such commission or brokerage. This memorandum relates to leasing of eight' houses on E. 100 Street, Hew York. Dated December 15,1909.”

The above is signed, and sealed hi the presence of a witness, and it seems to us that it constituted a v-alid waiver of any commission upon the transaction unless it resulted in an actual execution of the lease and the deposit of the money which the lease provided for. This agreement was signed at the time the parties were together on the sixteenth day of December for the purpose of agreeing upon the terms of the lease. The ■ first draft of the proposed lease was drawn in advance of this meeting, but it appears from the evidence that it was the subject of negotiation during all of the afternoon of the sixteenth, and that at the close of the negotiation the matter was still open, though it is claimed that it had been agreed upon with the exception of the making of .a contract of surety-ship for the money to be deposited by the plaintiff’s assignors upon the making of the lease. At any rate, the meeting adjourned to the twenty-first day of December without the lease having been signed or the money deposited. On the date last above mentioned the parties again met, and the defendant’s attorney insisted upon the execution of a new agreement in substantially the ■ same language as the one above quoted, the only variations being in reference to a new party who was to be a party to the proposed lease. This paper was duly executed under seal, as was the original, and when this was done defendant’s attorney announced that his client would not sign the.lease; that the transaction was at an end. It is not contended that the lease was signed, or that the money was deposited as contemplated by the lease, and the question before this court, upon this, appeal, is whether the plaintiff, as the assignor of the brokers mentioned, is entitled to recover the commission notwithstanding the fact that the lease was not executed and the money delivered. No fraud is alleged or proved; the plaintiff’s assignors, while the proposed lessees were still negotiating over the terms of the lease, stipulated in a formal agreement, under seal, that they should not be entitled to their fees unless a lease was actually executed between.certain named persons, these persons being “said Ashner and Cohen and KLionsky,” and it is not only conceded that no such lease was executed, but it appears from the record that the lease which it was proposed to" execute was between Louis Cohen and Harry Gold and Ida Ashner, so that under the terms of -the agreement of December 16, 1909, the defendant was certainly not liable. After the sixteenth came the proposal to change from Klionsky to Gold as one of the parties to the agreement, and there is no evidence whatever that there has been a substantial agreement as to the terms of a lease between Ida Ashner and Louis Cohen and Harry Gold at any time. The negotiations were between Ashner as agent of his wife and Cohen and Klionsky, and that transaction fell through, Gold being brought in in place of Klionsky. With this situation developed, plaintiff’s assignors entered into a new agreement that they were not to be paid except upon the consummation of the lease between Ida Ashner and Louis Cohen and Harry Gold. There was clearly no liability, in lawj up to the twenty-first day of December, for up to that time the parties whom the plaintiff’s assignors had produced were not readyj willing and able to sign the lease and make the deposit, and on the twenty-first of December a new party was introduced. The plaintiff’s assignors were brokers; they had a perfect right to make any conditions they might deem proper for the payment of commissions to themselves, and we are of the opinion that the learned court at Trial Term properly disposed of this case. It is hot the province of the court to make contracts; it may only enforce those which have been made where they are within the law.

The judgment and order appealed from should be affirmed^ with costs.

Jenks, P. J., Carr and Rich, JJ., concurred; Thomas, J., dissented.

Judgment and order affirmed, with costs.  