
    Ophuls & Hill, Inc., Appellant, v. The Jervian Corporation, Respondent.
    First Department,
    November 7, 1930.
    
      Frederick M. Schlater of counsel [H. Walter Reynolds with him on the brief; Graham & Reynolds, attorneys], for the appellant,
    
      Edward H, Tatum, for the respondent.
   Sherman, J.

The complaint, upon defendant’s motion made on the pleadings, has been dismissed as insufficient in law. This determination is sought to. be defended as correct, because the complaint does not allege that plaintiff was a duly licensed real estate broker, under section 442-d of the Real Property Law (added as § 442-e by Laws of 1922, chap. 672; renum. by Laws of 1926, chap. 831, as amd. by Laws of 1927, chap. 107), and because the facts as stated do not constitute any cause of action.

The contract sued on was for the sale of certain options owned by plaintiff, through which the defendant was enabled to negotiate for the acquisition of several ice and storage businesses in the State of Pennsylvania. Even if the suit be regarded as an- action for a broker’s commissions, upon an agreement made in this State, the allegations of the complaint do not bring it within section 442-d of the Real Property Law, so as to require an averment that plaintiff was a duly licensed real estate broker. (Weingast v. Rialto Pastry Shop, Inc., 243 N. Y. 113.)

The complaint sets forth- a cause of action.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Dowling, P. J., Merrell, Martin and O’Malley, JJ., concur.

• Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  