Barrett v. Jacobs

Order denying plaintiffs’ motion for summary judgment reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. No issues of fact exist which are determinative of this litigation. Such issues of fact as appear in the record concern matters which have no legal significance in view of the existence of the undisputed controlling facts which appear in the record. The issue is, therefore, purely one of law and reveals a situation where the plaintiffs have earned and have become entitled to their brokerage under the terms of the instrument of June 11, 1929, as accepted by the defendant. Rich, Hagarty and Carswell, JJ., concur; Lazansky, P. J., and Kapper, J., dissent, being of opinion that the papers show that there is a question of fact to be tried.