
    Guarantor Realty Corporation, Appellant, v. William H. Barnum and William Everdell, Jr., Respondents.
    First Department,
    March 17, 1916.
    Principal and agent—broker’s actions for commissions — lease not negotiated by plaintiff.
    
      It seems, that a real estate broker may recover commissions upon the rental reserved in a lease procured by him although the lease has not been actually executed by the parties, if they have made a valid and binding agreement to make it.
    But such broker is not entitled to commissions where he was employed to procure a lease of a particular parcel of land, if the defendants finally leased other lands and the broker had nothing to do with the transaction.
    Appeal by the plaintiff, Guarantor Realty Corporation, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 2d day of July, 1915, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial before the court and a jury at the Mew York Trial Term.
    
      Millard F. Tompkins, for the appellant.
    
      Thomas D. Thacher, for the respondents.
   Scott, J.:

The action is to recover commissions upon the rental reserved in a lease made between defendants and the firm of Brooks Brothers. The action differs from the usual action for broker’s commissions in that plaintiff does not claim to have been the procuring cause in bringing about the particular lease in question, but relies upon a special oral agreement by which, as it is alleged, defendants agreed to pay a commission upon any lease, which they, said defendants, might make with Brooks Brothers whether plaintiff was the procuring cause of such lease or not.

The ground assigned by the trial court for dismissing the complaint was that the action had been prematurely brought, because when it was commenced defendants had not actually executed a lease to Brooks Brothers, although a valid and binding agreement for such a lease had been made. We do not think that this objection was well taken (Tanenbaum v. Boehm, 202 N. Y. 293; Davidson v. Stocky, Id. 423), hut we are of opinion that plaintiff failed to prove a cause of action. It clearly appears that during the whole negotiations between plaintiff and defendants the contemplation was that defendants should acquire a particular parcel of land, not that which they did afterwards acquire, and erect thereon a building for the occupátion of Brooks Brothers. The agreement testified to by plaintiff’s witnesses must be held to have had reference to a lease of that particular site, and cannot in reason he extended to apply to any other site which defendants might acquire and lease, and with which plaintiff had nothing to do. (Parkhurst v. Tryon, 134 App. Div. 844.)

The judgment appealed from is affirmed, with costs.

Clarke, P. J., Laughlin, Smith and Page, JJ., concurred.

Judgment affirmed, with costs.  