
    Julius Meyer, Respondent, v. Improved Property Holding Company of New York, Appellant.
    First Department,
    April 8, 1910.
    Principal and agent—real property — broker—procuring lease — facts not showing right to commissions.
    Where a real estate broker is not the procuring cause of a lease he cannot recover commissions, although it would not have been made but for his introduction of the third party to the owner.
    Broker’s action for commissions for procuring a tenant. Evidence examined, and held, that a verdict for the plaintiff was against the weight of evidence.
    Appeal by the defendant, the Improved Property Holding Company of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24tlx day of Hovember, 1909, upon the verdict of a jury, and also from an order enteréd in said clerk’s office on the 8th day of Hovember, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      George Hahn, for the appellant.
    
      Thomas H. Hothwell, for the respondent.
   Laughlin, J.:

This is an action brought by a broker to recover commissions for procuring a tenant for the defendant. The lease, of which the plaintiff claims to have been the procuring cause, was by defendant to one Max Kurzrock on the 26th day of April, 1907. It was in wilting, and embraced nine stores in the new building at the northeasterly corner of Forty-second street and Sixth avenue, known as Bryant Park Arcade Building, and was for the term of nineteen years from May 1, 1907. The annual rent reserved was a gross sum per annum, and for the first two years it was $47,437 and thereafter $51,750, and was payable in equal monthly installments in advance. The plaintiff has recovered, on the basis of the rental reserved in this lease, one per cent per annum during the first ten years of the term, aggregating the. sum ■ of $5,088.75, together with interest thereon. - The defendant paid this precise amount as commissions."to one Seleznick for procuring the lease on the day the lease was executed. The plaintiff was not sufficiently familiar with the material facts with respect to this lease to enable. his attorneys to allege them accurately.

It is alleged in the complaint that the defendant sublet eight stores by one or more leases to said Kurzrock; that Kurzrock , received the lease as to seven of the stores for a syndicate composed of himself, one Lewis J. Seleznick and others ; that the defendant knew when it executed the lease that Kurzrock represented the syndicate; that Kurzrock, with full knowledge on the part of the defendant, received the lease of one of the stores for H. Howard & Co., a corporation of which Seleznick was an officer; that “ sublease or sub-leases for the said eight stores were procured by . the plaintiff Lor the defendant pursuant to the. employment of the plaintiff by the defendant; that the said Max Kurzrock, was likewise procured by the plaintiff "for the defendant as sub-lessee of,the said eight stores as aforesaid, that the persons for whose benefit the said sub-lease or sub-leases of seven of the said stores were made, and who became liable for their respective shares of the rent due under the said sub-lease or sub-leases by their contract as aforesaid, including the said Lewis J. Seleznick and the said Max Kurzrock, were likewise procured by the plaintiff for the defendant to receive the said benefit and to incur the said liability and to enter into the said contract ; that H. Howard & Co. was likewise procured by the plaintiff foi’ the defendant- to receive the benefit of the said sub-léase of oné of the said stores and to incur the said liability for rent and to enter into the contract as aforesaid and to become the actual tenant of one of the said stores as aforesaid; ” that plaintiff’s services were of the reasonable value of one per cent of $912,000, the total amount of rent reserved in the lease, or $9,120, and that thé defendant promised and agreed to pay the same. As already stated, there was but á single léase, and it fan for the period of nineteen years. The plaintiff ^'originally claimed to be entitled to recover a commission of one per centum for the entire period; but evidently learning that before the lease was made there was an agreement between the defendant and the party who negotiated it by which a commission should only be paid on the rental reserved for the first ten years, the complaint was amended by limiting the demand to a percentage on the rentals reserved for the first ten years. The plaintiff was not the-procuring cause of this lease, although it may well be that but for his introduction of Seleznick to defendant it would not have been made, and, therefore, he was not entitled to recover. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 381; Hay v. Platt, 66 Hun, 488; Willard v. Ferguson, 125 App. Div. 868; Cole v. Kosch, 116 id. 715.)

On the part of the plaintiff, evidence on the main issue was given by himself and Seleznick. The material part of their testimony, viewed in the most favorable light to the plaintiff, merely shows that Seleznick was conducting a retail jewelry store on Sixth avenue, and the plaintiff in some manner learned, or it occurred to him, that Seleznick was or might be desirous of changing the location of his business; that, with, a view to interesting Seleznick in one of . these stores, the plaintiff interviewed the .assistant secretary of the defendant to ascertain the rentals demanded, and thereafter opened negotiations with Seleznick, who made a proposition for one of the "stores, which was declined; that defendant’s assistant secretary, on Seleznick’s suggestion, finally offered to rent one of the stores to him on his final proposition, provided he obtain tenants for two of the other stores; that Seleznick undertook to obtain such tenants, but abandoned it, and formed a syndicate for procuring^ lease of nine of the stores, and without the assistaúce or intervMtipn of the plaintiff he succeeded in interesting friends and acquaintances, and in organizing a syndicate, and in negotiating the lease to Hurzrock, conducting the negotiations himself directly with the defendant as is ordinarily done by a - broker, having, "to the knowledge of the defendant, abandoned any intention of taking a lease of one of the stores for conducting a jewelry business therein, as had been originally contemplated; that the defendant was aware of the fact that Kurzroek in taking the lease was acting for himself and others, including Seleznick, and that the latter intended to and. did take and occupy one of the stores as a brokerage office, a business which, after giving up the jewelry business, he had determined to engage in, and that, before the consummation of the lease, Seleznick claimed a commission, and defendant demurred on the ground that he was a principal, but he insisted upon his right to commissions, and defendant yielded to the extent of one per. cent on the rents reserved during the first two years.

There is no allegation or proof that the lease was taken in the name of Kurzrock for Seleznick, except as it is alleged that he was to have and did take one store in bad faith, and with a view to depriving the plaintiff of his commissions, which would have presented another question. (See Freedman v. Havemeyer, 37 App. Div. 518; Miller v. Vining, 112 id. 304; Waters & Son v. Rafalsky, 134 id. 870.) On the contrary, as has been seen, the plaintiff alleges that he procured Kurzrock to make the lease. There is no evidence .to sustain this allegation. According to his own testimony he met Kurzrock by chance once at Seleznick’s store, and Was there introduced to him by Seleznick, and lie was aware of the fact that Seleznick was negotiating with Kurzrock originally for one of the three stores, and later as an associate or member of one syndicate to take all of the unrented stores, and the subject was discussed between him and them ; but this is as far as the plaintiff had any connection with Kurzrock. The lease is under seal, and. the defendant even if it had knowledge, which its officers deny, that Kurzrock was taking the lease for the benefit of others as well as himself, it could only look to him for performance, and neither party could be heard to say as against the other that others were interested. (Spencer v. Huntington, 100 App. Div. 463; affd. on opinion below, 183 N. Y. 506.) It is quite likely that thejjdefendant might not have made the lease had the plaintiff not jtiSK-duced Seleznick to one of its officers, but he was introduced as a prospective tenant for one of the stores for conducting the retail jewelry business therein, and although he subsequently occupied one of the stores under Kurzrock, such occupancy Was not according to his original intention, or of the same nature, or in consummation of the original negotiations.

Counsel for the defendant, at the close of the plaintiff’s case, duly moved for a nonsuit upon the ground that the evidence neither established the’ cause of action alleged nor any cause of action. This was denied, and an exception was duly taken. It was renewed at the close of the evidence,, and an exception was again duly taken to a like ruling. We are. of .opinion that the case did not require submission to the jury, and that the court erred in denying these motions. Bnt, if the evidence was sufficient, in any possible view of it, to take the case to the jury the verdict would be clearly against the weight of the evidence. Moreover, the verdict could not be sustained for the reason that the court declined a request, duly made by defendant, to charge “ that if the plaintiff Meyer introduced Mr. Seleznick to the defendant as a prospective tenant for one store, and Mr. Seleznick afterwards applied to the defendant either on his own behalf or for himself and.others for a lease of a number of stores, this would riot give the plaintiff any claim for commissions.” That request, considered in the light of the conw plaint, which is not for the recovery of a commission for procuring a tenant for one store, but for procuring this lease to Kurzrock for the nine stores, is a sound proposition, and should have been charged, and the exception to the refusal to so charge was well taken.-

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin,. Miller and Dowling, JJ., concurred.

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