Opinion
March 23, 1955.
Appeal from Monroe County Court.
Present — Vaughan, J.P., Kimball, Piper, Wheeler and Van Duser, JJ.
Judgment reversed, on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The plaintiff seeks a recovery for real estate commissions to which she claims she is entitled by virtue of a contract between the parties. The contract specified by its terms that the listing was under the "Multiple Listing Service Plan" of the Real Estate Board of Rochester, Inc. It was error, therefore, to exclude the rules governing such plan offered in evidence by the plaintiff. ( Bibb v. Allen, 149 U.S. 481, 489; Clews v. Jamieson, 182 U.S. 461, 481; Gettys v. Newburger, 272 F. 209, 215; Crowley v. Commodity Exch., 141 F.2d 182, 188; Kent v. De Coppet, 149 App. Div. 589, 592.) The claim of the defendant, too, that there was a rescission of the contract, prior to the sale made of the property, and within the period of the contract and its "extended period", was mutually cancelled or abandoned, is contrary to the weight of the evidence. The judgment should be reversed and a new trial granted. All concur.