Opinion
November 2, 1949.
Present — Taylor, P.J., Love, Vaughan, Kimball and Piper, JJ. [See post, p. 944.]
Judgment in favor of defendant Schmidlin affirmed, with costs. Judgment in favor of defendant Sullivan, and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: We feel that section 439 of the Penal Law is not applicable to the facts disclosed by this record. All concur, Taylor, P.J., on the further ground that the verdict was against the weight of evidence. (Appeal from two judgments of Erie County Court in favor of defendants in an action to recover commissions. The order denies plaintiff's motion for a new trial as to defendant Sullivan.)