
    M. I. Bernett, Inc., Appellant, v. Robert G. Bossert et al., Respondents.
   Appeal, by permission of this court, from an order of the Appellate Term which affirmed a judgment of the First District Court, Nassau County, in favor of the defendants, entered upon the verdict of a jury, and an order of said District Court, denying plaintiff’s motion to set aside the verdict and for a directed verdict in its favor. The notice of appeal brings up for review an order of said District Court making the Appellate Term order its order, and the judgment of affirmance entered thereon in said District Court. Order of the Appellate Term reversed on the law and judgment directed in plaintiff’s favor, as prayed for in the complaint, with costs in all courts. In an action to recover a commission the binder on which the broker sued herein was a contract for the sale of real estate, eoneededly signed by all the parties, in which all essential terms of the sale were set forth and which provided for said broker’s commission, without qualification. Accordingly, upon execution thereof the broker had earned its commission, and could not be deprived thereof by reason of failure of consummation of the sale (Colvin V. Post Mtge. & Land Go., 225 N. Y. 510, 51A-516; Tanenbaum v. Bo'ehm, 202 N. Y. 293, 299-300; Mengel V. Lawrence, 276 App. Div. 180, 183; Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209). The terms of the binder being complete and unambiguous, its construction is a matter of law (Nau v. Vulcan Bail & Gonstr. Go\, 286 N. Y. 188, 198-199), hence it was error to deny plaintiff’s motion for a directed verdict. Appeal from order making the Appellate Term order the order of the District Court and judgment entered thereon dismissed, without costs. Such order and judgment are not appealable to this court (Civ. Prac. Act, § 623, subd. 1). Adel, Wenzel, Schmidt and Beldoek, JJ., concur; Nolan, P. J., concurs for reversal but dissents as to the granting of judgment in favor of plaintiff, and votes to grant a new trial. [See post, p. 1102.]  