Tanenbaum v. Boehm

Clarke, J. : This is the second trial of this action. Upon the first trial both, sides, at the close of the case, moved for the direction of a verdict. The court said: “ I will grant the motion of the defendants dismissing the complaint on the merits.” Upon appeal (126 App. Div. 731) we considered the case as if the court had directed a verdict for the defendants, reversed the judgment and ordered a new trial. In our opinion we examined the facts and finding that there' was no dispute of what had occurred up to the close of the interview between the owners, the proposed tenant, the brokers and the several counsel on the 14th of December, 1905, when all the terms proposed by the defendants had been acceded to by the proposed tenant, conceded to have been procured by the plaintiffs, and the parties to the transaction had declared the terms accepted and the matter closed and had shaken hands, held that. the brokers’ work was done and their rights established. We said: “ The right of the broker does not depend upon the execution of the completed contract. He must have failed to have brought the minds of the parties together. I think this record establishes the fact that the minds of the parties did meet upon every term and condition propounded by the defendants and that both parties regarded and stated that the transaction was then and there closed, and that the failure to subsequently. consummate was entirely due to the defendants propounding new and unreasonable terms which, had never been disclosed theretofore, either to the brokers or to the tenant. The brokers having done all that they were required to do had earned their commissions.” The learned trial court, upon the second trial, at the close of the whole case, when both parties had moved for the direction of a verdict, deemed that the law of the case had been settled by this court and granted the motion and directed a verdict for the plaintiffs. The defendants asked- to go to the jury upon all the questions in the [288] case, and upon the question of whether the minds of the parties'met upon an agreement of lease of these premises, and duly excepted to •the denial of that.motion. It does not seem necessary, to restate the facts as set 'out in our ■ former opinion. The learned counsel for the appellants states in his ■ brief that “ all of the facts brought out at the first trial, as summarized in the prevailing opinion- handed' down on the former appeal, * *' * • were established" at the second trial.” If, then, we were right in" holding that at, the close of the interview on the fourteenth of December the minds of the parties had met and the brokers’. commissions had been then earned, this judgment is right, because the "somewhat elaborated testimony in this record of what occurred after that interview, in the attempt to get -together upon the terms of the- formal lease which was to be executed, in the course of which the transaction finally failed of consummation because of new and ■Unreasonable terms insisted upon by the counsel of the defendants which Had not been submitted to the brokers or "to the proposed tenant, cannot affect the result. • • • - If, the brokers, upon the facts in this case, had not earned'their commissions, I do not see how brokers would be entitled to commission's in any case until the contract evidencing the agreement had been sighed, sealed and delivered. T do not understand that to be the law. ; The judgment and order appealed from should be-affirmed, with costs to the respondents. Houghton and Scott, JJ., concurred; McLaughlin and IngBa- : ham, JJ., dissented.