On rule to show cause why a peremptory or alternative writ of mandamus should not issue.
For the relator, Edward R. McGlynn.
For Vincent J. Murphy, Thomas L. Parsonnet.
For city of Newark, James F.X. O'Brien.
Before Justices Bodine and Porter.
BODINE, J. The rule in this case directs the defendant to show cause why, as director of finance of the city of Newark, he should not issue the necessary warrant to pay the relator the sum of $25,430.90 on account of commissions in connection with the leasing of premises at 200 Washington street, Newark, in accordance with the terms of a resolution adopted August 14th, 1940, by the Board of Commissioners.
The city of Newark had leased the premises in question, pursuant to a resolution of December 19th, 1934, for a term of twenty-one years with a privilege under certain conditions not performed to renew for ten years more. This lease was effected by Messrs. Feist & Feist, brokers, who have been paid commissions out of the rentals received. The present broker on October 9th, 1935, procured some changes in the lease and an extension of the term for twenty-nine years, or a total term of fifty years. It claimed at the time negotiations with the city were commenced that it should receive the usual brokerage commission of five per cent. of the total aggregate rental to be paid under the lease. The payment now sought was authorized by resolution of the Board of Commissioners adopted August 14th, 1940.
The tenant took possession December 1st, 1935, under the lease as amended. The effect of the amendment, as to the terms, was to eliminate the option provisions which was contingent upon an immediate building operation not performed and to extend the term of the lease to fifty years.
The question for determination is, whether the broker, who procures an extension of a lease for twenty-nine years, is
entitled under the circumstances of this case to the agreed commission from the rents received by the city?
We do not think the tenant a necessary party to the proceedings. The question for determination is simply between the broker and the city. If the broker's right is clear mandamus should go.
The negotiations consummated in the extension of the lease are shown by the following excerpt from the conference minutes of October 9th, 1935: "The city clerk: I have a letter dated October 9th, 1935, from the Waring Realty Company, and over the signature of Lee K. Waring, reading as follows: 'Honorable Mayor and Commissioners of the City of Newark, City Hall, Newark, New Jersey. Re: 200 Washington Street. Gentlemen: In accordance with your counter proposal of September 25th, 1935, our client has consented to the appraisal as per your suggestion and herewith offer the signed proposal, "It is understood that we are to receive from the City of Newark the usual brokerage, namely five per cent. (5%) of the total aggregate rental. Yours very truly, Waring Realty Company (signed) Lee K. Waring, President." There is attached to this letter a letter from Levy Brothers Management Corporation, 1440 Broadway, New York City, bearing date October 1st, 1935, and over the signature of Jacob Levy, President of 200 Washington Street Corporation * * *.' The last mentioned letter contains a proposal ...