#### William Folsom et al., Respondents, *v.*Albert Hesse, Appellant.

(Supreme Court, Appellate Term,

October, 1898.)

Brokers — Must produce a party able to contract — Effect of a proposed lease extending beyond the minority of an infant tenant in common.

In order to recover commissions real' estate brokers must show that they have found a person who is not only willing, but is also able, to enter into the contract which they have been authorized to negotiate; and where a client authorizes brokers to procure for him a lease of property for eight years and this term exceeds by one or more years the period of. the minority of an infant tenant in common, even if it be assumed that the infant has a duly appointed guardian, a lease by the guardian could not overrun the infant’s minority and would be void for the excess, and hence, in procuring consent to a lease for eight years, the brokers have earned no commissions as they have failed to procure a person who is able to enter into the contract which the client authorized them to negotiate.

Appeal from a judgment of the Third Municipal Court, borough of Manhattan, in favor of the plaintiffs.

*714Ovide Dupre, for appellant.

P. C. Talman, for respondents.

Gildersleeve, J.

The undisputed testimony shows that defendant was looking for a place to hire for a restaurant; that among other places he looked at No. 24 Unión square; that there was a sign *“*to let ” on the premises, with plaintiffs’ firm name as brokers-; that defendant called, on or about November 19, 1897, on the plaintiffs, who are real estate brokers, with regard to hiring the place; that plaintiffs drew up a letter embodying the conditions that defendant would agree to, which letter begins as follows, viz.: “ Messrs. Folsom Brothers: Gentlemen.— I hereby agree to lease building, No. 24 Union square, for eight years, beginning May 1,-1898, and pay $3,000 per year, on the following conditions,” etc.; and then follow the conditions upon which defendant was willing to hire the place. The plaintiff William Folsom, who appears to have had charge of the matter for his firm, handed this letter to defendant for his signature, and agreed to present it to the owners of the property for their approval and acceptance. Defendant swears that he regarded this letter simply as a proposition on his part, and not as a binding agreement. Subsequently defendant and said plaintiff went to the office of the attorneys for the owners of a third interest in the property, where another discussion took place as to terms. The property was apparently owned by three different parties, one of whom was represented by the said attorneys, Messrs. Strong & Oadwallader, another was Mrs. Buggies, who was present at the interview at the .attorneys’ office, and the third part was owned by the two children of Mrs. Buggies, one of whom was either just, or nearly twenty-one and the other about fourteen or fifteen years of age. These children do not appear to have been present, and there is ño evidence to show whether or not they had any guardian, or were in any way represented in the matter. Mr. Wickersham, oñe of said attorneys, raised some objections to, the. terms, as set forth in the letter wdiich plaintiffs had drawn up and which defendant had signed, and some alterations were made; and then the letter was again handed to- defendant, who read it over and said the terms were satisfactory to him, according to the' testimony of Mr. Wickersham, but defendant swears that he told him that he wanted his lawyer to see the paper before he signed the lease. The attorneys subsequently drew up a lease embodying *715the terms set forth in the letter, as altered, and sent it to defendant to have it signed by him; bnt defendant refused to execute the lease, saying he wished to submit it to his lawyer, and that he wished some alterations made. The attorneys replied that it was too late, as the owners had agreed to the terms embodied in the letter, and that no changes could be made. Defendant, however, persisted in his refusal, and the lease was never executed. The landlords do not appear to.have taken any action in the matter, but plaintiffs bring this action for brokers’ commissions, claiming to be entitled to $240, which is 1 per cent, on $24,000, the rent for eight years at $3,000 a year. It is their claim that they were hired by defendant to procure the lease, and that they have performed their contract. Defendant’s claim, on the other hand, is that plaintiffs were the agents for the owners of the property in question, and that defendant negotiated with them as such agents solely, without, in any way, employing them to act as brokers for himself. The justice gave judgment for the plaintiffs.

Without going into an analysis of the evidence, for the purpose of determining whether or not the judgment is against the "weight of testimony, we think that the judgment must be reversed for the following reason: It is undisputed, one, at least, of the landlords is a minor, who will reach the age of twenty-one in six or seven years. The lease is for eight year's, or, at least, one, if not two, years longer than the coming of age of the minor landlord. It is well settled that before a broker is entitled to recover compensation for his services, he must show that he has found a person *able*and willing to enter into the contract which he was authorized to negotiate. See Smith v. Seattle, etc., R. R. Co., 72 Hun, 202. The plaintiffs, according to their own evidence, were authorized to negotiate a lease for eight years. It seems that the defendant wanted one for ten years, but agreed to take one for eight years. If we assume that there was a guardian for the infant, of which there is no evidence, the power of the guardian to make a lease of his ward’s lands was limited to leases terminating within the ward’s minority; and, on the option of the ward, the lease would be void for the excess, *i. e.,*the one or two years that the lease had to run after the coming of age of the ward. See Schonler’s Domestic Relations, § 350, page 555; Willard on Real Property (2d ed.), page 433; Woerner on Guardianship, page 45; Emerson v. Spicer, 46 N. Y. 597. It, therefore,-follows that plaintiffs, even according to their own testimony, did not produce a *716party able to enter into the contract which plaintiffs were authorized to negotiate.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Giegerich, J., concurs.

Beekman, P. J. (concurring).

The evidence shows' that the plaintiffs were acting as brokers for the owners of the premises in question, and had their bill affixed thereto, advertising the same to let. ■ Nothing passed between the plaintiffs and the defendant with respect to any employment of the former to obtain a lease of the property, or touching the payment by the defendant of any commission, nor can any such employment be justly inferred from anything that is disclosed by the record. All the plaintiffs did was quite consistent with the proper performance by them of their duties as brokers for the owners. I am of the opinion that the plaintiffs failed to establish any contract of employment with the defendant, either express -or implied, and that for that reason the judgment in their favor should be reversed.

Judgment reversed and new trial ordered with costs to appellant to abide event. ...