
    Bond and Mortgage Guarantee Company, Appellant, v. Upland Realty Company et al., Defendants, Clarence A. Sparks, Respondent, and Title Guarantee and Trust Company, Appellant.
    
      Brokers — mortgage — services performed in connection with real property — contract by owner with guarantor of mortgage whereby it was authorized to pay broker's claim — action to foreclose mortgage — counterclaim of broker improperly dismissed.
    
    
      Bond & Mortgage Guarantee Co. v. Upland Realty Co., 187 App. Div. 459, affirmed.
    (Argued May 13, 1921;
    decided May 31, 1921.)
    Appeal from a judgment, entered July 9, 1919, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment entered upon a decision of the court on trial at Special Term in so far as it dismissed the defendant respondent’s counterclaim and directing judgment in favor of said defendant, respondent, on said counterclaim. The action was to foreclose a mortgage. The respondent had performed certain brokerage services in connection with the land. Plaintiff had guaranteed the mortgage. Prior to the commencement of this action the owner of the land, being desirous to sell part of it free from the hen of the mortgage, had entered into a contract with plaintiff whereby plaintiff was to receive all sums paid for the lots and among other things was authorized to pay respondent’s claim. The Appellate Division held that the owner “ might lawfully demand that the Title Guarantee and Trust Company pay the debt that it was authorized to pay, that he might be relieved from this liability, to which he would still be ,subject if this claim be not paid out of the moneys thus received by the Title Guarantee and Trust Company. The claim of the defendant, respondent, rests, not upon any lien, but purely upon a contract made in his behalf for the payment of these moneys out of this fund.”
    
      Ellis G. Kinkead, Harold Swain and Benjamin G. Bain for appellants.
    
      Richard T. Greene and Daniel S. Murphy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Chase, Hogan, Cardozo, McLaughlin, Crane and Andrews, JJ.  