
    Herman Thiel, Appellant, v. Harris Schonzeit and Meyer H. Schonzeit, Respondents.
    
      Construction of contracts — when it is a question of fact for the jury and not one of law for the court— costs in an action at law cannot he made conditional upon an appeal being taken.
    
    "While it is usually the province of the court to construe contracts, yet where the meaning is obscure and depends upon facts aliunde in connection with the written language, the determination of that meaning may properly be left to the jury.
    "Where in an action brought by a real estate broker to recover commissions under a contract which provided, “It is agreed that if the sale of the house 1999 Second Avenue goes into effect that the broker, Max Hausman, shall be entitled to receive §150.00 if title is taken, as commission,” the court permits the broker to give oral evidence tending to show that the words, “ if title is taken,” contained in the contract, referred to the taking of title by his employers, who had not acquired the title at the time the contract was made, and not to the taking of title by a purchaser from the employers, it is improper for the court, upon a motion for a nonsuit, to construe tire contract, as matter of law, adversely to the broker’s contention, but he should submit the construction of the contract as one of fact to the jury.
    A judge presiding at the trial of an action at law has no power, when directing • the dismissal of a complaint therein, to make such dismissal conditional upon a waiver by the defendants of the costs of the action, unless the plaintiff should appeal, in which case the defendants should have costs.
    
      Appeal by the plaintiff, Herman.Thiel, from a, judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 6th day of February, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      Joseph Wilkenfeld, for the appellant,
    
      Paul M. Abrahams, for the respondents.
   Willard Bartlett, J.:

I think that the plaintiff introduced sufficient evidence in support, of his alleged cánse of action to entitle him to have the case submitted to the jury. He sued as the .assignee of a real estate broker-. named Max Hausman^ to recover commissions for procuring the. sale of certain real estate for the defendants. The premises which were the subject of the transaction are known as No. 1999 Second avenue in the borough of Manhattan. The evidence-in behalf of the-plaintiff tended to show that Hausman procured a man named Kosower to enter into a contract for the purchase of this property at a price satisfactory to' the defendants. It appeared upon the cross-examination of Hausman,.-however, that he had made the following written agreement with the defendants relative to the sale :• It 'is agreed that if the sale of the house -1999 Second Avenue-goes into effect that tlie broker, Max Hausman, shall be entitled to-receive. $150.00 if title is taken, as commission.” Kosower did- not. take title, and the contention of the defendants on the trial ivas that his failure to take title deprived the broker of any right to commissions by virtue of the terms of the foregoing written agreement. The broker Hausman, however, was allowed to give testimony, without objection, explanatory of the agreement, to the effect that at. the time of his employment the defendants had not themselves. yet acquired title to 1999 Second avenue, and that the clause “ if' title is taken,” in the written agreement aforesaid, referred to a conveyance to the defendants by the prior owners—the intention being that he did not propose to charge any commission unless the sellers of the property "should acquire a title which they could convey toKosower. At the close of the plaintiff’s ease, however, the learned trial judge granted a motion to dismiss the complaint, expressing the opinion that the title referred to in the written agreement was the Kosower title, and saying that he thought the explanation offered in behalf of the plaintiff by Hausman, to the effect that the agreement referred to the title to be acquired . by the defendants rather than the Kosower title was “ too far fetched.”

It seems to me that the court erred in thus assuming to decide what was undoubtedly a question of fact in an action at law. It was proper to receive the testimony as to the meaning óf the clause concerning the title in the written agreement under the general rule that although it is usually the province of the court to construe contracts, yet where the meaning is obscure and depends upon facts, aliunde in connection with the written language, the determination of that meaning may properly be left to the jury. (First National Bank v. Dana, 79 N. Y. 108, 116, and cases there cited.) But. having received oral testimony as to the meaning, the court should not assume to construe the contract as matter of law upon a motion for a nonsuit.

The order for the dismissal of the complaint was made conditional upon a waiver of the costs of the action by the defendants unless the plaintiff should appeal, in which case the order provided that the defendants were to have their costs. It seems to me quite clear that the court was without authority to impose, such a condition as this in an action at law.

The judgment should be reversed.

Hirsohberg, P. J., Jenks and Hooker, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  