
    Ewing, Bacon & Henry, Incorporated, Respondent, v. John R. Hoyt, Appellant.
    
      Ewing, Bacon & Henry, Inc., v. Hoyt, 165 App. Div. 904, affirmed.
    (Submitted February 6, 1918;
    decided February 26, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 13, 1914, affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought by plaintiff in its own right and as assignee of Zittel & Sons .to recover damages for breach of an alleged oral contract, claimed to have been entered into by defendant with plaintiff acting by one Messimer in its employ, and Zittel & Sons, acting by one Stiles in their employ, all real estate brokers, on or about May 6, 1912, that if an exchange were effected of about seventy acres of land at Great Neck, owned by Cobe, for 598 Broadway, New York city, owned by Howell, the total commission should be divided between the three, and any of them receiving more than one-third should pay over the excess to the others to an amount equal to make their shares each one-third of the .total. The complaint alleged that an exchange was effected on July 9, 1912, resulting therefrom; that Cobe paid the defendant as commissions $8,100; that Howell paid Zittel & Sons as commissions $3,000, and that defendant refused to divide and distribute the commissions as agreed, and that there is due and owing to plaintiff from defendant one-third of the commissions. By his answer defendant denied that he was broker for .Cobe or received any commissions from him or that he made any agreement with plaintiff or plaintiff’s assignor for the division of commissions.
    
      Henry B. Johnson for appellant.
    
      John Vernon Bonnier, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Collin, Cuddeback, Cardozo, Pound and Andrews, JJ. Dissenting: His cock, Ch. J., and Crane, JJ.  