Opinion
February 9, 1933.
Appeal from the Municipal Court, Borough of Manhattan, Third District.
Relyea, Bunnell Bunnell [ William C. Relyea of counsel], for the appellant.
Edward T. Corcoran, for the respondent.
Although we are in accord with the conclusion of the trial court that the defendant's alleged promise to pay additional commissions was within the Statute of Frauds, and, therefore, unenforcible, we do not agree that there was an implied contract to pay such additional commissions in the event that the tenant exercised its option to renew the lease.
In the absence of special agreement, the plaintiff would not be entitled to commissions on subsequent extensions of which it was not the procuring cause. Nor could the plaintiff recover on the theory that by securing the inclusion of the renewal clause in the original lease it performed services which were of benefit to the defendant. On the contrary, by assenting to the clause which gave the tenant the option of renewal, the defendant subjected itself to a liability without corresponding benefit. Indeed, the plaintiff made no attempt to prove that its services in procuring such an option in the original lease were of any value to the defendant, and it is manifest that it could not do so.
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.
All concur; present, LEVY, CALLAHAN and UNTERMYER, JJ.