
    Victor Spitzer, Respondent, v. Moses Ginsberg, Appellant.
   Present — Callahan, J. P., Van Voorhis, Shientag, Heffernan and Bergan, JJ.; Van Voorhis, J., dissents in the following memorandum: The complaint should be dismissed upon the ground that the action is premature before title has actually been closed, in view of plaintiff’s statement in his letter dated October 5, 1951: “It is further understood that if the sale, for any reason whatsoever, will not be consummated, I will not demand any commission.” Although this letter is addressed to Beverly Hotel, Inc., it refers by its terms to any commission which may be payable in connection with the transaction. Only one commission could be payable, since the contract of sale, if made, is entire. If defendant Moses Ginsberg assumed payment of the commission, the letter quoted indicates that it was intended to inure to Ginsberg’s benefit. The order appealed from should be reversed and summary judgment granted to defendant dismissing the complaint, without prejudice to a renewal of the action in event that title to the real property in question is actually transferred to the purchaser procured by plaintiff. [See 280 App. Div. 760.]  