Opinion
April 16, 1956
Present — Nolan, P.J., Beldock, Ughetta and Hallinan, JJ.; Wenzel, J., not voting.
In an action to recover a broker's commission of $700 from the owners of a parcel of real property, the owners counterclaim to recover $700, the difference between the amount alleged to have been collected by the broker from the purchaser and the amount paid by the broker to the owners. The appeal is from an order granting the broker's motion for summary judgment and denying the owners' motion for summary judgment on their counterclaim, and from the judgment entered on said order. Order modified by striking therefrom the first ordering paragraph and by substituting therefor a provision that plaintiff's and defendants' motions for summary judgment be denied, and by striking from said order the second ordering paragraph. As so modified, order unanimously affirmed, with $10 costs and disbursements to appellants. Judgment vacated, without costs. Under the circumstances herein, questions of fact are presented which should be resolved by a trial. ( Suslensky v. Metropolitan Life Ins. Co., 180 Misc. 624, affd. 267 App. Div. 812. )