
    Julian Benedict, Respondent, v. Louis Pincus and Alexander Pincus, Appellants.
    First Department,
    November, 1905.
    Contract of broker to procure tenant—failure to show performance — direction of verdict, when error — whén unnecessary to except to. .
    A real estate broker, suing for commissions under a contract to procure a tenant, , cannot recover when the agreement signed by the prospective tenant is a mere option in his favor which cannot be enforced by the principal. ■ The plaintiff fails to show performance of the contract set forth in his complaint.
    Where the defendant has produced evidence that there was an oral agreement that the commissions were not to be paid until the lease was signed and the written agreement is silent as to the commissions, heshould be allowed to go to the jury on that question, and it is error to direct a verdict for the plaintiff. Where defendant has excepted to the court’s denial of his request to go to the jury on the above question, the exception is available on appeal and he need not also except to the direction of a verdict.
    Appeal by the defendants, Louis Pincus and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of New York on the 27th day of January, 1905, upon the verdict, of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 26th day of January, 1905, denying the defendants’ motion for a new trial made upon the minutes.
    
      John W. Weed, for the appellants.
    
      John Frankenheimer, for the respondent.
   McLaughlin, J.:

This action was brought to recover commissions alleged to have been earned by the plaintiff in procuring as a broker for the defendants a tenant as sub-lessee of certain premises in which they had a leasehold interest.

The complaint alleged the employment of the plaintiff and that he found one Smith, who was able, ready and willing to execute and fulfill the provisions of the lease on terms named by the defendants and entered into a preliminary agreement for such lease, of which the following is a copy :

“New York, Sept. 26/1902.
“We agree to execute a lease of premises .40 W. 34th to R. Smith from October or November, 1906 — for 7 years .at a rental of $18,000.00 per year; the lease as to conditions to be an exact copy of the lease we npw hold on the above, premises; by the conditions it means taxes, insurance (if in lease) running expense, etc., included; it is understood that at signing of lease — 6 mos. rent in advance is to be paid by R. Smith, this to draw 6% yearly in advance; L. & A. Pincus is to secure R. Smith for above amount by the assignment of lease of 40 West 34th St., now existing (providing this can be done); or other security. Lease to be executed and signed on or before October 10th, 1902.
“LOUIS PINCUS,
“ ALEXANDER PINCUS,
“R. SMITH.
“In presence of
“Julian Benedict.”

The evidence on the part of the plaintiff showed no performance on his part other than obtaining the agreement referred to. No evidence was offered to the effect that any lease was, in fact, exeexited by Smith or that six months’ rent, amounting to $9,000, to be paid in advance by him under the terms of the agreement, was paid.

The defendants’ answer denied the employment of the plaintiff; admitted the signing of the agreement, but alleged that before signing the same plaintiff was informed by. defendants that he woxild not earn his commissions unless Smith complied with the agreement, and plaintiff then stated that he would have no claim for commissions against defendants until Smith carried out the arrangement for a lease; and thereupon the defendants sighed the agreement.

The defendant Alexander Pincus testified that before the paper was signed he stated to the plaintiff that he wished him -to understand that no commissions are to be paid in this transaction until this lease is executed according to the terms in that paper and Mr. Benedict said that was satisfactory to him and when he said that, I signed the paper.” ■

The plaintiff contends that he had earned his commissions by-procuring a person able, willing and ready to take a lease and that the agreement referred to established that fact. Defendants contend that the agreement was not equivalent to procuring a pex*soh to take a lease as it was not enforcible against Smith.

At the conclusion of the trial two issues were presented —• one of law in regard to the effect of the agreement, and "one of fact as to whether or not the contract between the parties was that the commissions were not to be paid until' the lease was, in fact, signed. The trial court, on motion of the plaintiff’s attorney, directed a verdict in favor' of the plaintiff, notwithstanding the defendants asked to go to the jury on the question of fact. This request was denied, the court remarking: “ I find no evidence to sustain that proposition,” and defendants, excepted.

I am of the opinion that the jxxdgment appealed from must be reversed for two reasons: First. Plaintiff never performed the agreement set oxxt .in his complaint. The agreement which was signed by the defendants and Smith was an option merely in favor of Smith and imposed no obligation on him to take a lease. It could not have been enforced against Smith. The word “we” used in the agreement refers solely to the defendants. Smith did not obligate himself to do anything. It was, at most, therefore, an option in his favor which in no way bound him to comply with .its terms. Within the authority of Condict v. Cowdrey (139 N. Y. 273); Gerding v. Haskin (141 id. 514); Milstem, v. Doring (102 App. Div. 349) and Ward v. Zborowski (31 Misc. Rep. 66) the commissions were never earned and the plaintiff, therefore, cannot maintain the action.

An error was also committed at the trial which necessitates a reversal of the judgment. At the conclusion of the charge the defendants’ attorney made the following request: “ I would ask Your Honor to allow me to goto the jury on the question of whether there was not a contract between these parties by which the plaintiff’s commission was not to become due until there had been a lease signed between the parties.” This request was denied, the court remarking, “ I find no evidence to sustain that proposition,” and an exception duly taken. There was evidence to this effect, which was the testimony of Alexander Pincus before referred to. A question of fact was thus presented which should have gone to the jury. It will be observed that there is nothing in the written agreement which refers in any way to commissions. Therefore, it could not be urged that this contradicted or varied the terms of the agreement. But it is said this exception is unavailing inasmuch as the defendants’ attorney did not except to the direction of a verdict. He had made a proper request to go to the jury, which had been refused and an exception taken. That exception was not destroyed because he did not subsequently except to the direction of a verdict. When a request is made to go to the jury upon a question of fact and it is denied and an exception taken, it is unnecessary to go through the idle ceremony of excepting to the direction "of a verdict under penalty of being deprived of the exception to the erroneous ruling. If the exception is good the party has a right to rely upon it.

The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to appellants to abide event.

Patterson and Ingraham, JJ., concurred ; O’Brien, P. J., concurred on the ground that it was error not to submit to the jury the question as to when the commissions were payable.

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