Plaintiff, a broker, was employed by defendant to sell his store conducted on leased premises. Plaintiff failed to find a purchaser at the price stipulated, but after negotiations defendant and the proposed purchaser agreed on a different price. Thereupon a contract was entered into between the purchaser and defendant the effectiveness of which was made dependent upon the consent of the landlord to the assignment of the lease. In this contract drawn by plaintiff there was a provision that plaintiff was the broker and the seller agreed to pay him his commission. In our opinion the agreement to pay the commission and the agreement to sell the store were both dependent upon the consent of the landlord, which concededly was never given. Part of plaintiff’s testimony serves to confirm this interpretation.
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.
All concur; present, Bijub, Levy and Ceain, JJ.