Opinion
Argued March 4, 1957
Decided April 11, 1957
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, BENEDICT D. DINEEN, J.
Kalman I. Nulman for appellant.
Melvin Howard Osterman for respondents.
In this action based on an agreement allegedly entered into for the purpose of effecting a sale to defendant Samuel Marco of plaintiff's interest, including good will, in a partnership insurance business, the issue presented is whether the agreement violated the Insurance Law with regard to sharing agents' commissions, as claimed by defendants, or whether it was a valid agreement, as claimed by plaintiff. On the imperfect instruments drawn by the parties themselves, and in the light of this record, we cannot say that the agreement sued on is illegal as a matter of law and may in no respect be enforced. Questions of fact are present, and whatever the final judgment may be, plaintiff is entitled to a trial thereof ( Stulsaft v. Mercer Tube Mfg. Co., 288 N.Y. 255, 260; Peoples Nat. Bank Trust Co. v. County of Westchester, 261 N.Y. 342, 346-347).
The judgment of the Appellate Division should be reversed and the order of Special Term reinstated, with costs in this court and in the Appellate Division.
CONWAY, Ch. J., DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE, JJ., concur.
Judgment reversed, etc.