B. Osborne Smith, Inc. v. Weiss

The complaint in this action for a brokerage commission alleged, and the plaintiff’s case was tried and submitted to the jury on the theory that defendant, the purchaser, agreed that if he purchased certain real property he would cause said property to be purchased through the plaintiff as broker, so that plaintiff would be enabled to earn and receive from the seller a commission of $5,000. The evidence failed to support this allegation and theory. Accordingly, the judgment for plaintiff must be reversed, with costs, and the complaint dismissed, with costs. Judgment unanimously reversed, with costs, .and the complaint dismissed, with costs. Settle order on notice. Present — Martin, P. J., Dore, Cohn, Callahan and Peck, JJ.