Opinion
November 30, 1953.
In an action for broker's commissions, defendants appeal from an order denying their motion for summary judgment. Order affirmed, with $10 costs and disbursements. Special Term correctly held that respondent is bound by the written agreement as to commissions. If, as respondent contends, she was employed prior to its execution, the written agreement modified the prior employment agreement and was valid. (Personal Property Law, § 33, subd. 2.) Whether respondent's proposed purchasers were able and willing to perform and performance was prevented by the active conduct of appellants cannot be determined as matter of law on this record. Adel, Acting P.J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur.