
    Enrico V. Pescia, Respondent, v. Louis Haims, Appellant.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Brokers — Compensation: Performance by broker — Mutual assent;
    Actions — Evidence — Weight and sufficiency.
    Where, in an action by a broker to recover commissions for securing a tenant for defendant’s property, the plaintiff claims that, in pursuance of an agreement with defendant, he notified him tha! he had secured a tenant and offered to make a deposit and thai defendant said he did not want a deposit but arranged to meet the proposed tenant at a future time; that defendant failed to keep the appointment and plaintiff went with the tenant to defendant’s house the same evening and offered defendant the leases and two months’ rent in advance but defendant refused both and said he had made a better lease; and where there is no evidence to show who the tenant was, nor where he lived, nor any facts to indicate he would have been a satisfactory or reliable tenant, and it appears that the money which plaintiff produced to pay the two months’ rent in advance was his own money, and the tenant is not produced upon the trial and the leases are not shown to have been satisfactory to defendant, the plaintiff has failed to show by a preponderance of proof that the minds of the parties met upon the terms of any lease, or that he is entitled to recover commissions, and a judgment in his favor should be reversed.
    Appeal by the defendant from a judgment entered in favor of the plaintiff in the City Court of the city of Hew York, after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial.
    Rosalsky & Rosalsky (Aaron A. Feinberg, of counsel), for appellant.
    Achille J. Oishei (Helson L. Reach, of counsel), for respondent.
   Clinch, J.

The plaintiff sued for broker’s commissions, claiming that he secured a tenant to lease certain property of defendant. Plaintiff claimed that, in pursuance of an agreement with defendant, he notified the latter on Saturday evening, September 26, 1905, that he had secured a proper party who would lease the property at the agreed price, and offered to pay $100 as a deposit; that defendant said he did not want a deposit but arranged to meet the prospective lessee on the following Monday at two o’clock; that, as defendant failed to keep the appointment on Monday afternoon, plaintiff went to defendant’s house the same evening with his client Pagano and one Gagliano and his father, and then offered defendant the leases, and the agreed sum of $1,100 as two months’ advance rent. Defendant, however, refused to accept the leases or the money, but informed plaintiff that that morning he had secured another tenant at a better price. There is no evidence to show who this Pagano was, where he resided, or what his business was or any other fact or facts which might indicate that he would have been a satisfactory and reliable tenant. It appears, however, that the $1,100 to be paid as advance rent was drawn by the plaintiff from his own savings bank account and that he took the money out of his pocket when he produced it before the defendant at the latter’s house. Pagano was not produced on the trial. Mor does it appear that the leases alleged to have been submitted by plaintiff to defendanl (which defendant denies) were satisfactory to him. The plaintiff has not shown, in our opinion, by a preponderance of proof that there was any meeting of the minds of the parties in respect to the terms of any lease; that he has performed such services as entitled him to a commission as t broker, or such facts as precluded the defendant from his ordinary right to lease to another and to terminate at will a contract with a broker before a bargain was made by which the broker’s commissions might become fixed. Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 383, 384.

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

Gildeesleeve and Davis, JJ., concur.

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