dissent">McGivern, J. (dissenting).

I feel I am constrained to vote for a reversal and dismissal because the plaintiff, unfortunately, did not produce a buyer, or in this case, buyers who met the mind of the owner on all the essential terms of an enforceable contract. And there being no proof that the primary purpose of the owner, in terminating the broker’s efforts, was to reap the fruits and thwart the plaintiff of commissions, he is not culpable. Nor do I believe, as the majority state, that I “ appear to believe ’ ’ that the sole criterion of good or bad faith is a subsequent sale by the owner to a higher bidder. But I do say there is nothing in this record to justify a finding of bad faith.

Nor can I subscribe to the conclusion of the majority that ‘ ‘ the term relied on was neither really in dispute nor of material consequence ’ ’. That the term was unsettled and in dispute is evident from defendant’s Exhibit A, wherein the plaintiff wrote, in her own handwriting ‘ ‘ PM —10 yrs.— going rate ’ ’. Then, on cross-examination she testified that she remembered clearly that he said as to the interest and amortization on the purchase-money mortgage “ going rate ”, but did not recall whether “ we said eight and two ’ ’. She further testified that at that time the going rate was 8% interest and 2% amortization on purchase-money mortgages; that ‘ ‘ he said the going rate and I may have said eight and two and he said the going rate ”. Later she also testified, ‘ ‘ I think I said to him eight and two and he nodded his head.” In her examination before trial, she testified that “ Mr. Abrams said he would work out terms ’ ’ for the purchase-money mortgage; that he said 1 ‘ ten years, but he did not tell me what interest and what amortization ’ ’, although ‘ ‘ he said the going rate ”.

The foregoing, to me at least, indicates not only that the term was far from settled, but that the case rests on the sangnineness of the plaintiff ultimately to bring the parties together on the requisite specifics of an enforceable agreement, an event, which alas, did not take place.

And when the majority find that the rate of interest and the terms of amortization of the contemplated second mortgage were not “ of material consequence ”, I respectfully invoke the recent *330case of Kaelin v. Warner (27 N Y 2d 352) involving a broker ‘‘ with terms to be arranged The court (Fuld, Ch. J.) said (p. 355): “ Where an owner merely specifies the purchase price of property, without fixing the other terms of sale, commissions are not earned until and unless the person produced by the broker reaches an agreement with the owner not only as to price but also as to the terms upon which the sale is to be made. ’ ’

And since a mere change of mind does not cast an owner in damages (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378), regretfully, I would dismiss the lady’s complaint.

Kupfebman and McNally, JJ., concur with Steueb, J. ; McGtivern, J., dissents in an opinion in which Stevens, P. J., concurs.

Order, Appellate Term, First Department, entered on December 1, 1970, affirmed. Plaintiff-respondent shall recover of defendant-appellant $50 costs and disbursements of this appeal.

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