
    Frank E. Mainhart, Respondent, v. Edward R. Poerschke, Appellant.
    (Supreme Court, Appellate Term,
    June, 1900.)
    Principal and agent — Unless the minds of the contracting parties meet, the broker cannot recover commissions.
    A real estate broker is not entitled to commissions upon an alleged procurement of an exchange of real estate, where the minds of the parties have never met upon the time when the client of the broker should yield possession of his premises to the other party — the actual possession of them being in a tenant, as the broker knew at the time he was negotiating.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New Yolk, borough of Manhattan, in favor of the plaintiff, upon a trial had before the court without a jury. The action was for broker’s commissions.
    Fromme Brothers, for appellant.
    Frank E. Hipple, for respondent.
   Per Curiam.

The judgment under review is sought to be upheld upon the ground that the plaintiff produced one Stern, who was ready and willing to exchange his property, situate in Mount Vernon, in the State of New York, for the defendant’s premises, known as No. 23d West One Hundred and Thirty-sixth street, in the borough of Manhattan, upon the terms named by the latter.

While it is true that, through the plaintiff’s efforts, the parties did agree upon a sum which was to be paid to the defendant for the difference in the equities of the lands to be exchanged, yet the record discloses that the minds of the parties never met with respect to the time when possession of the premises owned by the defendant should be given. This, even according to the testimony offered in behalf of the plaintiff, was still an open question when the parties agreed to meet at the office of the attorney for the defendant upon the following day. When they met it was discovered that the tenant, who then occupied the premises owned by the defendant, refused to waive service of ninety days’ notice to vacate the same, in case of a transfer of title, to which notice she was entitled by the terms of her lease. The defendant then refused to enter into a contract, unless Stem would stipulate to take the premises subject to such outstanding lease. The latter declined to do so, and the transaction fell through. The plaintiff knew of the existence of this provision of the lease while he was engaged in his negotiations. Since this was an implied contract for the services of a broker, his right to commissions was dependent upon his bringing the minds of the parties to an agreement (Byrne v. Korn, 25 Misc. Rep. 509), and having failed to do so it is obvious that the rendition of the judgment in his favor was erroneous.

It follows, from these views, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

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