
    Francis Morris, Respondent, v. Sophia E. Poundt, Appellant.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Brokers — Compensation — Bight to compensation — Employment by person sought to be charged.
    Where a broker, acting under the instructions of the tenant of certain real estate whose lease contains an option to purchase, gives notice to the owner that the option will be exercised, and the owner refuses to convey until advised that she is bound to do so by her counsel, and no employment of the broker by the owner is alleged or proved, he is not entitled to recover from the owner commissions upon the sale and a judgment in his favor therefor will be reversed.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, rendered in favor of the plaintiff.
    Daniel J. Early, for, appellant.
    John G. Ritter, for respondent.
   Levéutbitt, J.

The plaintiff neither pleaded nor proved a cause of action. • He alleged in his complaint that, pursuant to employment by the defendant, he procured a tenant for certain premises owned by her; that a lease for ten years was thereupon executed, which reserved to the tenant tk$ privilege to purchase the premises for $15,000 at any time within the first five years of the term; that she paid him for his services; that, shortly before the expiration of the five-year period, he induced and procured the tenant to take advantage of the privilege and to consummate the purchase; that the title was passed and the deed delivered; that he demanded as his commission $150, one per cent, of the purchase price, and that the defendant refused to pay.

Even if the most liberal construction be placed upon the plaintiff’s evidence, he proved those allegations, certainly nothing more. There was a fatal omission in pleading and proof. Employment by the defendant to effect the sale was neither alleged nor shown.

On the trial the plaintiff made no pretense that the defendant employed him, but, on the contrary, he repeatedly asserted that he was acting at the instance and for the benefit of the tenant and notwithstanding the expressed unwillingness of the defendant to make the sale. He testified that he, without the defendant’s knowledge, called the tenant’s attention to the approaching expiration of the option period; that the tenant, to whom he frequently referred as his client,” instructed him to notify the defendant that the option to purchase would be exercised; that he carried out these instructions; that the defendant refused to convey; that she claimed she was not bound by the option and insisted upon an advanced price; that he urged the tenant’s claim and tried to convince her that she could not escape from the provision of the lease, but that she did not yield until so advised by her counsel.

If the judgment should be enforced, an agent would be rewarded for services not only unsolicited but for services rendered against the wishes and against the interests of his principal.

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

Gilbersleeve and McCall, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  