
    John Jackson, Resp’t, v. Frederick Rode, App’lt.
    ( New York Common Pleas, General Term,
    
    
      Filed April 2, 1894.)
    
    1. Contract—When consummated.
    Until an oiler is unconditionally accepted or the proposed modification of such offer is unconditionally assented to by the offerer, there is' no agreement.
    
      2. Same—Withdrawal.
    Prior to such time, either party may withdraw Ms proposition.
    Action ,to„recover damages alleged to have accrued from defendant’s breach of a contract of lease by his refusal to assume possession of the premises alleged to have been demised to him. Appeal from a judgment for plaintiff rendered by. the district court in the city of New York for the eleventh judicial district.
    
      George Rill, for app’lt; Herbert J. Rindes, for resp’t. -
   Bischoff, J.

It is impossible upon attentive consideration of the evidence to conclude that a lease was at any time entered into between the defendant and plaintiff’s assignor: All the negotiations between the parties concededly existed only in the correspondence between them. On October 13th, 1893, defendant wrote to plaintiff’s assignor offering to accept a lease for the new Bochelle house from November 1st, 1893, to April 1st, 1894 at the monthly rental of twenty-five dollars. In response to this the assignor called at defendant’s residence but failed to meet the latter. On October 16th defendant again wrote referring to the occasion of the assignor’s call and expressing regret at not meeting him. In this last mentioned letter defendant mentions the fact that he was informed by his wife that he (the assignor) had accepted his (defendant’s) offer of October 13th and refers to the assignor’s expressed wish to have possession of the house surrendered to him on March 20th, 1894, to enable him to proceed with contemplated decorations and repairs to which proposed surrender however defendant refused to accede. On October 17th plaintiff’s assignor replied by refusing to recede from his proposal that the house be surrendered to him at the time mentioned, and on October 23rd defendant again wrote, this time withdrawing his offer to accept a lease altogether. This last letter evoked a response from plaintiff’s assignor which was to the effect that he would hold defendant to his offer of October 16th. It is apparent that the minds of the parties never met, that they had never fully agreed respecting the terms of any proposed lease, defendant insisting that it should endure until April 1st and plaintiff’s assignor that it should expire on March 20th. Consistently with his withdrawal of the offer to accept a lease defendant concededly never occupied the premises during any part of the proposed term. Until therefore, defendant’s offer was unconditionally accepted by plaintiff’s assignor, or the latter’s proposed modification of the offer was unconditionally assented to by the defendant, there was no agreement, hence no lease; and before his offer was unconditionally accepted by plaintiff’s assignor it was competent to defendant to withdraw it. Schenectady Stove Co. v. Holbrook, 101 N. Y. 45. It was error on the part of the justice below to award damages in any amount to the plaintiff and as upon the facts the judgment must be reversed and the complaint be dismissed it is unnecessary to examine other grounds of the alleged error. Judgment reversed, and complaint dismissed, with «costs of this appeal and of the court below.

All concur.  