Mann v. Gobel

221 A.D. 775

Opinion

Order of the County Court of Queens county setting aside verdict in plaintiffs’ favor affirmed, with ten dollars costs and disbursements. The trial court had no power to dismiss the complaint; but this court, upon appeal, dismisses plaintiffs’ complaint, with costs, pursuant to the provisions of section 584 of the Civil Practice Act. We do this because we are of opinion that, in view of the stipulation in the agreement or binder that plaintiffs were to receive their commissions from the defendant when the lease was signed, and it was conceded that the lease was never signed, plaintiffs have no cause of action. (Reis Co. v. Zimmerli, 155 App. Div. 260; Larson v. Burroughs, 131 id. 877; Costa v. Schetz, 175 N. Y. Supp. 476.) Kelly, P. J., Manning, Young and Kapper, JJ., concur; Lazansky, J., dissents.