146 N.Y.S. 960 | N.Y. App. Div. | 1914
This action was brought in the Municipal Court and the pleadings were oral. The complaint was for commissions due and the answer was general denial and Statute of Frauds, and a bill of particulars was demanded. Ho bill of particulars was ever furnished and the case came on for trial before the court without a jury.
The plaintiff’s assignor was called as a witness for the plaintiff and he testified that he was a real estate broker; that he he was employed by the defendant to procure a tenant for the defendant’s property on Third avenue; that the defendant’s interest in the property was that of tenant having a lease for twenty-one years; that the defendant agreed that she would give the broker the regular commission of one per cent on the amount of rent she should get for the premises; that he subsequently procured a tenant and a lease was executed, which was introduced in evidence. That lease was dated July 26, 1904, between the defendant, as the party of the first part, and the Twentieth Century Laundry Company, as the party of the second part, whereby the defendant leased the premises to the tenant “for a term of six (6) years and nine (9) months from the 1st day of August, 1904, expiring May 1st, 1911, at the yearly rent of Sixty-five hundred ($6,500) dollars per annum, to be paid in equal monthly payments in advance * * The lease also contained a provision by which the defendant agreed to grant to the said tenant a renewal of this lease for a further term of seven years to expire May 1, 1918, upon the same terms as those therein contained, and provided further that said tenant give to said landlord notice in writing claim
The broker further testified that, at the time of the execution of the lease, he told the defendant’s husband: “We will have to get our commission, now for the term of the lease, as we agreed upon between us,” to which the latter replied: “No, * * * you know my wife is very short on money, we had' that building vacant for such a long time now, and we will have to pay the taxes, the ground’s rent, wouldn’t you take the percentage this way ? As to the seven years now, and I will try to pay you that as soon as I can. * * * When the seven years is over and the tenant should take his option as he will on that lease, then you will get your commission on the seven; and if that is off, you will get your other percentage for the other seven years to come,” to which the broker assented.
But, assuming the contract was enforcible, I do not think the defendant was liable for this additional commission. The agreement as stated by the broker was: “ When the seven years is over and the tenant should take his option as he will on that lease, then you will get your commission on the seven; and if that is off, you will get your other percentage for the other seven years to come.” The condition upon which the broker was to receive this additional commission was the exercise of the option by the tenant at the expiration of the term of six years and nine months. To exercise that option the tenant had to give the defendant a notice in writing claiming such renewal at least four months prior to the 1st of May, 1911, in which case, without further negotiations or trouble, the lease would be extended for seven years. It is conceded that the tenant did not exercise the option and refused to take
Clarke and Scott, JJ., concurred; Dowling and Hotchkiss, JJ., dissented.
Determination of Appellate Term and of the Municipal Court reversed and new trial ordered, with costs in this court and in the Appellate Term to appellant to abide event. Order to be settled on notice.