In an action by a real estate broker for commissions for effecting an exchange of defendant's property, evidence that at or about the time of the signing of the contract of exchange, which stipulated that if the other party thereto rejected defendant's title, on the ground of bay-window or stoop-ledge encroachments, his deposit should be returned in full of all claims, plaintiff signed a writing wherein he agreed to wait for his commissions until after the title closed, was evidence tending to show that plaintiff, as well as defendant, regarded the contract of exchange as a mere option, and not an absolute, enforceable contract of exchange. Hough v. Baldwin, 99 N. Y. S. 545, 50 Misc. 546. See Sec. 95.