INGRAHAM, J.
The plaintiff, who was an attorney at law, practicing in the city of New York, received from the defendant, a foreign corporation organized under the laws of the state of New Jersey, a communication addressed to him in relation to two apartment' houses in Buffalo, N. Y., which stated that the defendant would pay for these apartment houses $70,000 in cash, or $21,000-cash, subject to the present incumbrances, and stated:
“If you succeed in inducing the Stockholders’ Real Estate Co. to sell this property to us for any figures less than $69,000, we agree that you shall be entitled to retain and keep the difference. If, on the other hand, we are obliged to pay $69,000 for the property, we will pay over to you the sum of $1,000 as your fee and commissions in the matter.”
This letter was signed by the defendant, pér Andrew Cobe, president. The complaint alleges that the'plaintiff “did succeed in inducing the owners of said real estate to sell the same to the defendant for the sum of $61,000, or $8,000 less than the $69,000, which the defendant was ready and willing to pay for said property.” In this letter the corporation, the owner of the property, is- designated the “Stockholders’ Real Estate Company.” The real name of the company appears, however, to be the Shareholders’ Company. To entitle the plaintiff to recover under this contract, he was required to prove that he succeeded in inducing the Shareholders’ Real Estate Company to sell the property for less than $69,000. The plaintiff was called as a witness, and examined in his own behalf. He produced a letter signed “Thos. Barker, Chairman of Committee,” which stated that the plaintiff’s letter of the 17th inst., containing an offer for these apartment houses,- had been received, but that it was impossible at that time to accept his bid. Just what offer the plaintiff made does not appear. This was, so far as appears, the only written communication that the plaintiff received from those representing the Shareholders! Real Estate Company. The plaintiff testified that subsequent to signing this contract with the defendant he had a number of interviews and negotiations with those representing the Shareholders’ Real Estate Company, also with a Mr. Sammis, their general counsel, with M!r. Cobe, the president, and with Mr. Butler, the treasurer of the defendant; that on January 26th he had an interview with Sammis, counsel for the Shareholders’ Company; but what he said or did at any of these interviews, or whether or not the interviews in any way related to the purchase of the property by the defendant did not appear. He further testified that on January 27, 1901, he secured what purported to be a copy of the minutes of a special meeting of the Shareholders’ Real Estate Company held on February 11, 1901, at which meeting it was resolved that a bid of $52,000, less all mortgages, taxes, or other liens upon the two apartment houses, the property of the company, in the city of Buffalo, made by John B. Kiley, of Rochester, N. Y., should be accepted. Upon cross-examination of the plaintiff, counsel -for the [10]*10defendant endeavored to ascertain just what the plaintiff did in relation to the Shareholders’ Real Estate Company, but without much success. He was asked whether he ever obtained any contract or memorandum in writing from the Shareholders’ Real Estate Company whereby that company agreed to sell the property in question to the defendant for $69,000 or $70,000, or any other sum. In answer the plaintiff testified that he did not have a contract executed under the corporate seal of the real estate company, and he could not. recollect whether he had ever had any contract not under seal. Nor was any contract ever produced, either from the Shareholders’ Company or from Kiley, its grantee, to convey this property to the defendant. Plaintiff never had any communications or letters from Kiley. There was then introduced in evidence a deed from the Shareholders’ Real Estate Company to Kiley, dated February 11, 1901. Subsequent to the conveyance of the property by the Shareholders’ Real Estate Company to Kiley the defendant submitted to the plaintiff a contract for the sale of the property from Kiley to the defendant, which was never executed by Kiley. The plaintiff having rested upon this testimony, the defendant moved to dismiss the complaint, which motion was denied. Kiley was then called as a. witness, and stated that he did not know the plaintiff, never saw him, never had any conversation with him; that he sold the property to the defendant, and after he sold the property he first received letters from the plaintiff. A deed was then introduced, whereby Kiley conveyed this property to the defendant, dated March 6, 1901. The consideration was $1, and was subject to two mortgages upon the premises. Kiley testified that he saw the president of the defendant two or three days before the date of the deed; that on the date of the deed he received the consideration for the sale in cash, and handed the deed over to the defendant’s president; that he never heard the plaintiff’s name from Mr. Sweeney, or from anybody else, and that he never had anything to do with the plaintiff; that he purchased the property at the request of Sweeney, who furnished him with the money which he paid to the Shareholders’ Real Estate Company for the property; that Sweeney, at the time he gave him the money, said that the money came from Mr. Miller; that he purchased the property with the understanding with Sweeney that he was to acquire title to the property as owner when Sweeney gave him the funds to buy it; that he was to hold the property for a man named Miller; that when Sweeney first approached him about the property he told him that a man named Miller in New York was to buy the property from the Shareholders’ Real Estate Company, and that he (Kiley) was to take title for Miller, and it was under that arrangement that he acquired title to the property, Sweeney paying him the amount that he was to pay for it; that after he acquired title to the property he advertised it for sale; that he received many communications in regard to it, which he forwarded to Sweeney.
Upon this evidence the court submitted to the jury the question as to whether the defendant procured the property through the instrumentality and efforts which the plaintiff put forth in that re[11]*11spect, charging the jury that if he (plaintiff) was the procuring cause, or if, in other words, he performed the contract, then there was another question.which was submitted to the jury, growing out of the relation of Mr. Kiley to the transaction. Having thus submitted this question to the jury, the jury was further charged that if, from the evidence, “you find in this case that Kiley held that title for anybody except .the plaintiff, that would defeat the plaintiff’s recovery in this action. But if, although holding the deed, and although he in form gave a deed to this defendant, it was done for the benefit of the Shareholders’ Company, and they received the benefit of the transaction, and he merely held the title for their accommodation or for their benefit, then it was in reality the property of the Shareholders’ Real Estate Company of Buffalo, and it was their sale to the defendant just as much as if they had all through the transaction held the actual record title. You may ■ take those two questions, and if you find that the plaintiff performed his contract, and that this deed from Kiley to the defendant was in fact given for the benefit of the Shareholders’ Real Estate Company, as I have stated to you, if you find both of these propositions in favor of the affirmative, then your verdict should be for the plaintiff in the sum of $9,380.” '
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INGRAHAM, J.
The plaintiff, who was an attorney at law, practicing in the city of New York, received from the defendant, a foreign corporation organized under the laws of the state of New Jersey, a communication addressed to him in relation to two apartment' houses in Buffalo, N. Y., which stated that the defendant would pay for these apartment houses $70,000 in cash, or $21,000-cash, subject to the present incumbrances, and stated:
“If you succeed in inducing the Stockholders’ Real Estate Co. to sell this property to us for any figures less than $69,000, we agree that you shall be entitled to retain and keep the difference. If, on the other hand, we are obliged to pay $69,000 for the property, we will pay over to you the sum of $1,000 as your fee and commissions in the matter.”
This letter was signed by the defendant, pér Andrew Cobe, president. The complaint alleges that the'plaintiff “did succeed in inducing the owners of said real estate to sell the same to the defendant for the sum of $61,000, or $8,000 less than the $69,000, which the defendant was ready and willing to pay for said property.” In this letter the corporation, the owner of the property, is- designated the “Stockholders’ Real Estate Company.” The real name of the company appears, however, to be the Shareholders’ Company. To entitle the plaintiff to recover under this contract, he was required to prove that he succeeded in inducing the Shareholders’ Real Estate Company to sell the property for less than $69,000. The plaintiff was called as a witness, and examined in his own behalf. He produced a letter signed “Thos. Barker, Chairman of Committee,” which stated that the plaintiff’s letter of the 17th inst., containing an offer for these apartment houses,- had been received, but that it was impossible at that time to accept his bid. Just what offer the plaintiff made does not appear. This was, so far as appears, the only written communication that the plaintiff received from those representing the Shareholders! Real Estate Company. The plaintiff testified that subsequent to signing this contract with the defendant he had a number of interviews and negotiations with those representing the Shareholders’ Real Estate Company, also with a Mr. Sammis, their general counsel, with M!r. Cobe, the president, and with Mr. Butler, the treasurer of the defendant; that on January 26th he had an interview with Sammis, counsel for the Shareholders’ Company; but what he said or did at any of these interviews, or whether or not the interviews in any way related to the purchase of the property by the defendant did not appear. He further testified that on January 27, 1901, he secured what purported to be a copy of the minutes of a special meeting of the Shareholders’ Real Estate Company held on February 11, 1901, at which meeting it was resolved that a bid of $52,000, less all mortgages, taxes, or other liens upon the two apartment houses, the property of the company, in the city of Buffalo, made by John B. Kiley, of Rochester, N. Y., should be accepted. Upon cross-examination of the plaintiff, counsel -for the [10]*10defendant endeavored to ascertain just what the plaintiff did in relation to the Shareholders’ Real Estate Company, but without much success. He was asked whether he ever obtained any contract or memorandum in writing from the Shareholders’ Real Estate Company whereby that company agreed to sell the property in question to the defendant for $69,000 or $70,000, or any other sum. In answer the plaintiff testified that he did not have a contract executed under the corporate seal of the real estate company, and he could not. recollect whether he had ever had any contract not under seal. Nor was any contract ever produced, either from the Shareholders’ Company or from Kiley, its grantee, to convey this property to the defendant. Plaintiff never had any communications or letters from Kiley. There was then introduced in evidence a deed from the Shareholders’ Real Estate Company to Kiley, dated February 11, 1901. Subsequent to the conveyance of the property by the Shareholders’ Real Estate Company to Kiley the defendant submitted to the plaintiff a contract for the sale of the property from Kiley to the defendant, which was never executed by Kiley. The plaintiff having rested upon this testimony, the defendant moved to dismiss the complaint, which motion was denied. Kiley was then called as a. witness, and stated that he did not know the plaintiff, never saw him, never had any conversation with him; that he sold the property to the defendant, and after he sold the property he first received letters from the plaintiff. A deed was then introduced, whereby Kiley conveyed this property to the defendant, dated March 6, 1901. The consideration was $1, and was subject to two mortgages upon the premises. Kiley testified that he saw the president of the defendant two or three days before the date of the deed; that on the date of the deed he received the consideration for the sale in cash, and handed the deed over to the defendant’s president; that he never heard the plaintiff’s name from Mr. Sweeney, or from anybody else, and that he never had anything to do with the plaintiff; that he purchased the property at the request of Sweeney, who furnished him with the money which he paid to the Shareholders’ Real Estate Company for the property; that Sweeney, at the time he gave him the money, said that the money came from Mr. Miller; that he purchased the property with the understanding with Sweeney that he was to acquire title to the property as owner when Sweeney gave him the funds to buy it; that he was to hold the property for a man named Miller; that when Sweeney first approached him about the property he told him that a man named Miller in New York was to buy the property from the Shareholders’ Real Estate Company, and that he (Kiley) was to take title for Miller, and it was under that arrangement that he acquired title to the property, Sweeney paying him the amount that he was to pay for it; that after he acquired title to the property he advertised it for sale; that he received many communications in regard to it, which he forwarded to Sweeney.
Upon this evidence the court submitted to the jury the question as to whether the defendant procured the property through the instrumentality and efforts which the plaintiff put forth in that re[11]*11spect, charging the jury that if he (plaintiff) was the procuring cause, or if, in other words, he performed the contract, then there was another question.which was submitted to the jury, growing out of the relation of Mr. Kiley to the transaction. Having thus submitted this question to the jury, the jury was further charged that if, from the evidence, “you find in this case that Kiley held that title for anybody except .the plaintiff, that would defeat the plaintiff’s recovery in this action. But if, although holding the deed, and although he in form gave a deed to this defendant, it was done for the benefit of the Shareholders’ Company, and they received the benefit of the transaction, and he merely held the title for their accommodation or for their benefit, then it was in reality the property of the Shareholders’ Real Estate Company of Buffalo, and it was their sale to the defendant just as much as if they had all through the transaction held the actual record title. You may ■ take those two questions, and if you find that the plaintiff performed his contract, and that this deed from Kiley to the defendant was in fact given for the benefit of the Shareholders’ Real Estate Company, as I have stated to you, if you find both of these propositions in favor of the affirmative, then your verdict should be for the plaintiff in the sum of $9,380.” '
The plaintiff’s right to recover depended, not upon his conducting negotiations for the sale of the property to the defendant, but upon his complying with a contract which provided that if he succeeded in inducing the Shareholders’ Real Estate Company to sell the property to the defendant, he was to receive the difference between the price paid and $69,000. It was only in the event of his complying with this condition that he was entitled to recover. But, as I read this testimony, there is no evidence to show that the plaintiff ever did succeed in inducing the Shareholders’ Real Estate Company to sell the property to the defendant at any price, or that his efforts had anything to do with the purchase of the property by the defendant. So far as appeals, he never made any offer for the property, except one, which was declined, and had nothing to do with the transaction which resulted in the purchase of the property from Kiley. He says that he had a conversation with the counsel for the company and- with a Mr. Sweeney, but he failed to testify as to what that conversation was, or that it related in any way to the purchase of this property. Upon the evidence the case stands thus: The plaintiff called the attention of the defendant to this property in Buffalo, and procured a letter from the defendant, which stated that they were willing to purchase it at $69,000 or $70,000, and that, if he induced the owners of the property to sell it for a sum less than $69,000 the plaintiff was to have the difference between what he procured the property for the sum of $69,000; that he had conversations with counsel for the company and one or two others interested in it; that subsequently the company sold and conveyed the property to a third party, who subsequently conveyed it to the defendant. This certainly did not justify a finding that the plaintiff induced the Shareholders’ Real Estate Company or Kiley to convey the property to the defendant, or that the plain- # [12]*12tiff had anything to do with the transactions, except writing letters to the defendant about it. I think, therefore, that the finding that the plaintiff directly or indirectly induced the Shareholders’' Real Estate Company to convey the property to the defendant was without evidence to support it, and that therefore there was no proof that the plaintiff ever performed his contract. The verdict, therefore, being against the weight of evidence, a new trial must be ordered.
It follows that the order denying a motion for a new trial and the judgment appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur,, except O’BRIEN, J., who dissents.