
    Leon Tanenbaum and Benjamin M. Strauss, Copartners, Doing Business under the Firm Name and Style of L. Tanenbaum, Strauss & Company, Respondents, v. Abraham Boehm and Lewis Coon, Doing Business under the Firm Name and Style of Boehm & Coon, Appellants.
    First Department,
    December 30, 1909.
    Judgment ■— res adjudicata — when opinion of Appellate Division binding on new trial.
    Where, upon an appeal from a judgment rendered in an action to recover broker’s commissions on a sale of real estate, the Appellate .Division orders a new trial, holding that on the undisputed facts the plaintiff was entitled to recover, the trial judge on a second trial, wherein substantially the same facts appear, both sides having moved for a verdict, should direct a verdict for the plaintiffs.
    A motion by defendant to go to the jury upon all questions in the case, made . after the direction of the verdict, is properly denied.
    McLaughlin and Ingraham, JJ., dissented with opinion.
    Appeal by the defendants, Abraham Boehm and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 16th day of December, 1908, upon the verdict of a jury rendered by direction of the court, and also- from an .order bearing date the 4th ■ day of January, 1909, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes, in an action brought to recover real estate broker’s commissions. .
    
      
      Edward W. Hatch of counsel [George L. Shearer, attorney], for the appellants.
    
      Ernest Hall of counsel, Alex. L. Strouse with him on the brief [Strovse c& Strauss, attorneys], for the respondents.
   Clarke, J. :

This is the second trial of this action. Upon the first trial both, sides, at the close of the case, moved for the direction of a verdict. The court said: “ I will grant the motion of the defendants dismissing the complaint on the merits.” Upon appeal (126 App. Div. 731) we considered the case as if the court had directed a verdict for the defendants, reversed the judgment and ordered a new trial. In our opinion we examined the facts and finding that there' was no dispute of what had occurred up to the close of the interview between the owners, the proposed tenant, the brokers and the several counsel on the 14th of December, 1905, when all the terms proposed by the defendants had been acceded to by the proposed tenant, conceded to have been procured by the plaintiffs, and the parties to the transaction had declared the terms accepted and the matter closed and had shaken hands, held that. the brokers’ work was done and their rights established. We said: “ The right of the broker does not depend upon the execution of the completed contract. He must have failed to have brought the minds of the parties together. I think this record establishes the fact that the minds of the parties did meet upon every term and condition propounded by the defendants and that both parties regarded and stated that the transaction was then and there closed, and that the failure to subsequently. consummate was entirely due to the defendants propounding new and unreasonable terms which, had never been disclosed theretofore, either to the brokers or to the tenant. The brokers having done all that they were required to do had earned their commissions.”

The learned trial court, upon the second trial, at the close of the whole case, when both parties had moved for the direction of a verdict, deemed that the law of the case had been settled by this court and granted the motion and directed a verdict for the plaintiffs. The defendants asked- to go to the jury upon all the questions in the case, and upon the question of whether the minds of the parties'met upon an agreement of lease of these premises, and duly excepted to •the denial of that.motion.

It does not seem necessary, to restate the facts as set 'out in our ■ former opinion. The learned counsel for the appellants states in his ■ brief that all of the facts brought out at the first trial, as summarized in the prevailing opinion- handed' down on the former appeal, * *' * • were established" at the second trial.” If, then, we were right in" holding that at, the close of the interview on the fourteenth of December the minds of the parties had met and the brokers’. commissions had been then earned, this judgment is right, because the "somewhat elaborated testimony in this record of what occurred after that interview, in the attempt to get -together upon the terms of the- formal lease which was to be executed, in the course of which the transaction finally failed of consummation because of new and ■Unreasonable terms insisted upon by the counsel of the defendants which Had not been submitted to the brokers or "to the proposed tenant, cannot affect the result. • •

• - If, the brokers, upon the facts in this case, had not earned'their commissions, I do not see how brokers would be entitled to commission's in any case until the contract evidencing the agreement had been sighed, sealed and delivered. T do not understand that to be the law. ;

The judgment and order appealed from should be-affirmed, with costs to the respondents.

Houghton and Scott, JJ., concurred; McLaughlin and IngBa- : ham, JJ., dissented.

McLaughlin, J. (dissenting):

I dissent for the reasons stated in my opinion on tlie former appeal (126 App. Div. iSS) and also for the reason that, as it seems to me, but one Conclusion can be drawn from the evidence adduced at the trial from "which the present appeal is taken, viz;, that the minds of the proposed lessors and lessees never met upon terms of a contract -of lease, and that the plaintiffs did- not procure or produce a tenant ready or willing to execute a lease upon, the lessors’ terms,-for which reason the- court erred in directing a verdict in favor of the plaintiffs. Both of the parties understood, when the negotiations for a lease were first begun, that such negotiations must result in a written agreement in order to be valid and binding. The plaintiff Tauenbanm testified: “I knew that when negotiation for a lease was begun it must ripen into a written agreement in order to be valid. I knew when these negotiations were being conducted that in order that Hr. Ball should have a lease that the ultimate agreement of the parties must be in writing and executed by them, and I have never known a lease of property of this character upon which a building was to be erected for a term which might cover sixty-five years being executed that rested in any other engagement than by a writing between the parties to make it valid. * * * Q. Now, at that time, when you undertook to get a tenant, you understood that if this property was leased-and a building erected upon it, that the engagement between the parties would be represented in a written lease? A. Why, certainly, expected it would be.”

The other plaintiff, Strauss, testified : “ Q. You knew, when you took up the subject of leasing this property, that there was to be a written lease? A. Well, 1 always take that for granted, that if we close fitegotiations the lease is to be drawn and signed.”

One of the defendants, Thomas It. Bail, testified: “Q. Did you expect that your engagement that yon should make between these parties when you entered upon your negotiations would culminate in a written instrument? A. Yes.” The testimony of this witness, and he is corroborated by the witness Rogers, is that the transaction was not closed at the interview of December fourteenth; on the contrary, all that the negotiations had amounted to up to and including that time, was that the parties had agreed upon certain matters, and it was then contemplated that the entire arrangement between them should be embodied in a written lease which would necessarily contain provisions as to several subjects which'had not then been discussed, and that-in the event that the parties should not be able to agree as to all of the provisions to be inserted in the lease the transaction would not be closed.

At the interview oh December fourteenth, the time within which the new building was to be erected was not discussed, and yet it was contemplated this was to be one of the provisions contained in the lease, and also a provision as to the remedies of the landlord in case the tenant failed to erect the building or pay the rent stipulated, and there were also other provisions necessarily to be inserted in a lease of this character. The transaction finally fell through because of the.inability to agree as to what the landlord’s remedies should be in case of default on the part of the tenant — the tenant’s attorney insisting that in case of the failure of the tenant to erect the building the landlord’s-remedy must be by a suit in.ejectment'; .while, on the other hand, the attorney for the landlord insisted that in the event of such default the landlord' should be entitled to summary proceedings — a material difference—because in the one case the possession could be obtained quickly, while in the other it might take many months or years.

It seems to me, therefore, the court erred in not directing a verdict in favor of the defendants, and in this connection attention is called to the case of Sherry v. Proal (131 App. Div. 774), recently decided by this court, and which would seem to be decisive of the question here presented.

But if the defendants were not entitled to the direction of a verdict, then clearly, when all of the evidence is considered, the case should have been sent to the jury to determine whether the minds-of the parties met at the conclusion of the interview on December fourteenth upon a completed agreement of lease. The question whether the specific details which the parties at that time did agree, upon were sufficient to constitute a meeting of minds upon all the essential provisions of a lease was one of fact, as to winch the defendants were entitled, as requested, to have the jury pass upon. If' the direction of a verdict for the plaintiffs were based upon the theory that the failure of the parties to agree was due to the act of the defendants subsequent to the interview of December fourteenth in imposing new and unreasonable terms, then it was for the jury to say whether such proposed terms were unreasonable.

I am of the opinion the judgment and order appealed, from should be reversed and a new trial ordered, with costs to appellants to abide the event'.

Ingeaham, J., concurred.

■ Judgment and-order affirmed, with costs.  