¶1This is an appeal by the defendant from a judgment entered on the verdict of a jury, and from an order denying a motion for a. new trial on the judge’s minutes. • •
¶2The action was brought to recover a broker’s commission. The plaintiff, as broker, negotiated an exchange of real estate and, on Rovember 6, 1895, the following agreement in writing was entered into between the parties.
Rew Yobk, November 6," .1895.
“ Agreement between Lazarus Wolf and Louis Schachne and Siegfried Schachne concerning purchase of 359- and 361 East Forty-ninth street, and" Ros. 883 and 885 First avenue in the city of Rew York for the price of $30,500. This amount to be paid as follows: First mortgage, $18,000; second mortgage, $1,000;-
paid to-day, $20; to be paid on contract, $480; on-taking title, $2,000; the balance of $9,000 (nine thousand dollars) to be paid by Louis Schachne and brother by transferring certain lots and houses they own.in Schenectady, R.- Y., contract to be made Rovember 7, 1895.
*520“ As this agreement is made without Lduis Schachne’s and brother’s attorney, and good only if their counsellor approves, this agreement is held subject to this special provision: Louis Sch'aclme - and brother promise Mr. Wolf after the consummation of these transfers to give át least $1,000 on the Sóhenectády property on bond'and mortgage provided proper time be agreed upon, is given.
“Louis SCHAOHNE-& BbO.” '
¶3This memorandum of - agreement specially, provides “ contract to be made Thursday, November %, 1895. As this agreement is • made without Louis Schachné and brother’s attorney, and good only if their counsellor approves, this agreement is held subject to '' this special provision.” ; ■
¶4This shows that in law this agreement is made Upon a condition, " and is dependent upon the performance of that(,conditiohj and if ..- ■„the condition is not complied with, no obligation thereunder arises and no rights thereunder attach. • -
¶5. The rule of law is that a broker is entitled to his' commission when the minds of the parties have met on every material particular • of the transaction. Here, in this case, however, the minds of the parties .in regard to the transaction have never met,- because the validity of the contract was made dependent .upon the condition that the defendants’ attorney approve of the • contract. The defendants’ attorney never approved .of the. contract.
¶6In -that event the contract and the whole 'transaction was to be null and void to the sáme effect as if no transaction whatsoever "had been agreed upon and entered into between the parties.
¶7For that reason the condition upon which the broker’s commission dependéd.and which entitled him in law to recover was never fulfilled, and he is not entitled to recover. Hoffman v. Gallaher, 6 Daly, 43; Glenny v. Lacy, 1 N. Y. Supp. 513.
¶8Judgment reversed and a new trial granted, with, costs to the ' appellants, to abide the event.
¶9Fitzsimons and Conlan, JJ., concur.
¶10Judgment reversed and new trial ordered, with costs to appellants to abide event.