Opinion
March 17, 1916.
Millard F. Tompkins, for the appellant.
Thomas D. Thacher, for the respondents.
The action is to recover commissions upon the rental reserved in a lease made between defendants and the firm of Brooks Brothers. The action differs from the usual action for broker's commissions in that plaintiff does not claim to have been the procuring cause in bringing about the particular lease in question, but relies upon a special oral agreement by which, as it is alleged, defendants agreed to pay a commission upon any lease, which they, said defendants, might make with Brooks Brothers whether plaintiff was the procuring cause of such lease or not.
The ground assigned by the trial court for dismissing the complaint was that the action had been prematurely brought, because when it was commenced defendants had not actually executed a lease to Brooks Brothers, although a valid and binding agreement for such a lease had been made. We do not think that this objection was well taken ( Tanenbaum v. Boehm, 202 N.Y. 293; Davidson v. Stocky, Id. 423), but we are of opinion that plaintiff failed to prove a cause of action. It clearly appears that during the whole negotiations between plaintiff and defendants the contemplation was that defendants should acquire a particular parcel of land, not that which they did afterwards acquire, and erect thereon a building for the occupation of Brooks Brothers. The agreement testified to by plaintiff's witnesses must be held to have had reference to a lease of that particular site, and cannot in reason be extended to apply to any other site which defendants might acquire and lease, and with which plaintiff had nothing to do. ( Parkhurst v. Tryon, 134 App. Div. 844.)
The judgment appealed from is affirmed, with costs.
CLARKE, P.J., LAUGHLIN, SMITH and PAGE, JJ., concurred.
Judgment affirmed, with costs.