The record presents a question of fact whether before the broker had earned any commissions he agreed that his compensation should be five per cent on payments as made on the contract and five per cent on the amount of the mortgage when title passes. Title to the property has never passed and the broker has received five per cent commissions on all payments made.

The bid made at the judicial sale was not a payment made under the contract.

The judgment of the Appellate Division and that of the Special Term should be reversed and the plaintiff’s motion for summary judgment denied, with costs in this court and in the Appellate Division and ten dollars costs of motion.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur; Crane, J., not sitting.

Judgment accordingly.