
    RICHARD V. HARNETT & CO., Inc., Appellant, v. ENGLANDER, Respondent.
    (Supreme Court, Appellate Division, First Department.
    June 28, 1907.)
    Appeal from Trial Term. Action by Richard V. Harnett & Co., Incorporated, against Bethoven Englander. From an order setting aside a verdict for plaintiff and a judgment dismissing its complaint, plaintiff appeals. Judgment reversed, order so far as it set aside the verdict affirmed, and new trial ordered. L. E. Warren, for appellant. Mark Ash, for respondent.
   LAMBERT, J.

The plaintiff brought this action to recover $1,000, with interest, commissions alleged to have been earned in negotiating an exchange of real estate. Upon the trial of the action the jury found a verdict in favor of the plaintiff, which, on motion of defendant, was set aside, and the plaintiff’s complaint was dismissed, on the ground that the plaintiff acted in the premises in violation of section 640d of the Penal Code, and that his right of recovery was thus defeated. It is conceded that the plaintiff did not have the written authority demanded by the Penal Code, and this court had, at that time, held that the act in question was not a violation of the Constitution of this state, so that the action of the learned court in granting the order appeared to be in harmony with the law. Subsequently, however, the Court of Appeals in Fisher Company v. Woods, 187 N. Y. 90, 79 N. E. 836, held section 640d of the Pqnai Code unconstitutional, both under the state and federal Constitutions. There is nothing remaining, therefore, upon the appeal from the judgment, except to reverse the same. The order granting the new trial should be affirmed, and the parties permitted to again p'resent their proofs and have the law 'applied thereto in harmony with the latest expression of the court of last resort. The judgment appealed from should be reversed, and the order, so far as it set aside the verdict, affirmed, and a new trial granted, with costs to the successful party to abide event. All concur.  