
    Daniel K. Roberts, Appellant, v. Kerby Saunders, Inc., Defendant-Respondent and Interpleading Plaintiff-Respondent. John S. Stewart et al., Interpleaded Defendants-Respondents.
   Judgment, Supreme Court, New York County, entered on April 2, 1970, unanimously reversed, on the law, and the case remanded for trial ab initio, with costs and disbursements to abide the event. At the end of plaintiff’s case in this action for commissions under an employment contract, the complaint was dismissed, the court deciding as a matter of law that plaintiff had not proven compliance with a condition precedent contained in the contract. Even assuming, but not deciding, the applicability of that condition to this situation, there was at the very least a factual issue as to whether, by conduct, defendant had waived that requirement. In dismissing, the trial court did not decide whether plaintiff had established a prima facie case as to the claimed impropriety of defendant’s distribution of the commissions to which plaintiff claims to be entitled. A new trial is therefore required. Concur—'Capozzoli, J. P., Markewich, Nunez, Murphy and McNally, JJ.  