
    Julian Benedict, Appellant, v. Louis Pincus and Alexander Pincus, Respondents.
    First Department,
    November 12, 1909.
    Principal and agent—broker’s action for commissions — agreement to postpone payment of commissions —• lack of consideration — evidence —• complaint by principal for specific performance and general release.
    A real estate broker who has procured a person ready and willing to take a lease on terms prescribed by his principal" has earned his commissions, and does not lose his right thereto by subsequently assenting, when the agreement was about to be signed, to his principal’s statement that the commissions were not to be paid until the tenant took the lease and paid the consideration, even though the lease was never consummated.
    Such subsequent agreement is void for lack of consideration.
    
      In an action by the broker to recover commissions he may put in evidence a complaint in an action by the principal against the customer for specific performance and also a general release of that action. The former is competent evidence of admissions by the principal, and the latter is competent to show that, if the agreement of the broker to postpone the payment of his commissions were valid, the principal had voluntarily put it out of his power to collect from the customer.
    Ingraham, J., dissented.
    Appeal by the plaintiff, Julian Benedict, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of March, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of March, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Robert L. Stanton, for the appellant.
    
      John W. Weed, for the respondents.
   Houghton, J.:

The plaintiff is a real estate broker and sues the defendants for commissions in obtaining a tenant for them. The defendants do not dispute the employment of the plaintiff, or that he procured one Smith to sign a paper, which the Court of Appeals held to be a binding agreement for a lease. (191 N. Y. 377.) This court had previously held that such agreement was a mere option, and Smith refusing to take, the commissions had not been earned. (109 App. Div. 20.) It followed from the decision of the Court of Appeals that the plaintiff did procure a tenant for the defendants who was ready and willing to take.

The defendants succeeded on the present trial on the theory that the plaintiff agreed to forego the payment of his commissions until Smith paid the amount stipulated in his contract and took his lease, and that Smith never having done that the commissions never became due. The only proof on this subject is that of the defendants, one of whom testified that as the agreement was about to be signed by the parties one of the defendants said to the plaintiff, “ you understand it is to execute a lease on Octobei the 10tli, and no commissions are to be paid unless Mr. Smith takes this lease and pays over the $9,000,” and that plaintiff replied, “ that is satisfactory to me.’ ”

Tlie plaintifE had earned his commissions when he procured Smith, who was ready and willing and able to take the lease on the defendants’ terms. Although he acquiesced in tile remark of the defendants he was not bound to forego his commissions if Smith never paid the $9,000 or executed the lease. There is no pretense that the defendants stated to the plaintifE that they would not accept Smith or execute the agreement unless the plaintifE would make the payment of his commissions conditional upon payment by Smith. Plaintiff’s acquiescence in the suggestion, if he did acquiesce, which he denies, was not a binding contract because it was without consideration. As the proof stood at the close of the case the plaintiff was entitled to a direction of verdict.

The learned trial judge submitted the case to the jury on the theory that the defendants’ acceptance of the tenant was conditional upon the plaintiff receiving no commissions unless the lease was actually made and the tenant paid the stipulated amount. The facts as disclosed by the record show no such agreement. While the language of the court in this respect was not directly excepted to, the various requests on the part of the plaintiff which the learned court refused to charge, fully present the question.

On Smith’s refusal to execute the lease the defendants brought action against him for specific performance alleging their contract with him and tender and refusal on his part. Shortly thereafter they withdrew that action and gave Smith a general release. The complaint and release were offered in evidence by the plaintifE and excluded. These papers were competent evidence not only as admissions on the part of the defendants but for the purpose of showing that if they had any valid agreement with the plaintifE to postpone the payment of his commissions they had voluntarily put it out of their power to collect from Smith.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Laughlin, Clabke and Scott, JJ"., concurred; Ingraham, J., dissented.

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