The opinion
By the Court,
Mullin, P. J.
Before the plaintiffs can maintain an action for breach of an agreement to give a lease, they must prove that a valid agreement to lease was entered into, between the parties.
If I understand the evidence, no agreement was ever concluded between the parties. The defendant refused to agree to lease until satisfactory security was furnished, and this was not done. An offer to give it, unaccepted, was of no consequence. Had the defendant *483 made an agreement by which he was bound to give a lease on receiving satisfactory security, he could not arbitrarily refuse to accept security proved to be sufficient. But until he was legally bound to accept such security he might conscientiously refuse to' accept any.
[Fourth Department, General Term, at Buffalo,
January 7, 1873.
Such is the condition of the defendant. He was not bound by any contract to lease, but on the contrary refused to bind himself to do so.
The motion for a new trial is denied, and judgment of nonsuit ordered for the defendant.
Mullin, Talcott and E. D. Smith, Justices.]