¶1I dissent for the reasons stated in my opinion on tlie former appeal (126 App. Div. iSS) and also for the reason that, as it seems to me, but one Conclusion can be drawn from the evidence adduced at the trial from "which the present appeal is taken, viz;, that the minds of the proposed lessors and lessees never met upon terms of a contract -of lease, and that the plaintiffs did- not procure or produce a tenant ready or willing to execute a lease upon, the lessors’ terms,-for which reason the- court erred in directing a verdict in favor of the plaintiffs. Both of the parties understood, when the negotiations for a lease *289were first begun, that such negotiations must result in a written agreement in order to be valid and binding. The plaintiff Tauenbanm testified: “I knew that when negotiation for a lease was begun it must ripen into a written agreement in order to be valid. I knew when these negotiations were being conducted that in order that Hr. Ball should have a lease that the ultimate agreement of the parties must be in writing and executed by them, and I have never known a lease of property of this character upon which a building was to be erected for a term which might cover sixty-five years being executed that rested in any other engagement than by a writing between the parties to make it valid. … Q. Now, at that time, when you undertook to get a tenant, you understood that if this property was leased-and a building erected upon it, that the engagement between the parties would be represented in a written lease? A. Why, certainly, expected it would be.”
¶2The other plaintiff, Strauss, testified : “ Q. You knew, when you took up the subject of leasing this property, that there was to be a written lease? A. Well, 1 always take that for granted, that if we close fitegotiations the lease is to be drawn and signed.”
¶3One of the defendants, Thomas It. Bail, testified: “Q. Did you expect that your engagement that yon should make between these parties when you entered upon your negotiations would culminate in a written instrument? A. Yes.” The testimony of this witness, and he is corroborated by the witness Rogers, is that the transaction was not closed at the interview of December fourteenth; on the contrary, all that the negotiations had amounted to up to and including that time, was that the parties had agreed upon certain matters, and it was then contemplated that the entire arrangement between them should be embodied in a written lease which would necessarily contain provisions as to several subjects which'had not then been discussed, and that-in the event that the parties should not be able to agree as to all of the provisions to be inserted in the lease the transaction would not be closed.
¶4At the interview oh December fourteenth, the time within which the new building was to be erected was not discussed, and yet it was contemplated this was to be one of the provisions contained in the lease, and also a provision as to the remedies of the landlord in *290case the tenant failed to erect the building or pay the rent stipulated, and there were also other provisions necessarily to be inserted in a lease of this character. The transaction finally fell through because of the.inability to agree as to what the landlord’s remedies should be in case of default on the part of the tenant — the tenant’s attorney insisting that in case of the failure of the tenant to erect the building the landlord’s-remedy must be by a suit in.ejectment'; .while, on the other hand, the attorney for the landlord insisted that in the event of such default the landlord' should be entitled to summary proceedings — a material difference—because in the one case the possession could be obtained quickly, while in the other it might take many months or years.
¶5It seems to me, therefore, the court erred in not directing a verdict in favor of the defendants, and in this connection attention is called to the case of Sherry v. Proal (131 App. Div. 774), recently decided by this court, and which would seem to be decisive of the question here presented.
¶6But if the defendants were not entitled to the direction of a verdict, then clearly, when all of the evidence is considered, the case should have been sent to the jury to determine whether the minds-of the parties met at the conclusion of the interview on December fourteenth upon a completed agreement of lease. The question whether the specific details which the parties at that time did agree, upon were sufficient to constitute a meeting of minds upon all the essential provisions of a lease was one of fact, as to winch the defendants were entitled, as requested, to have the jury pass upon. If' the direction of a verdict for the plaintiffs were based upon the theory that the failure of the parties to agree was due to the act of the defendants subsequent to the interview of December fourteenth in imposing new and unreasonable terms, then it was for the jury to say whether such proposed terms were unreasonable.
¶7I am of the opinion the judgment and order appealed, from should be reversed and a new trial ordered, with costs to appellants to abide the event'.
¶8Ingeaham, J., concurred.
¶9■ Judgment and-order affirmed, with costs.