
    John D. McGrath, Respondent, v. Russell H. Bagley et al., Doing Business as Bagley Cleaners, et al., Appellants.
   Action’ by a broker to recover the sum of $800 as commission earned by him as the procuring cause of the sale of a business owned by defendants Bagley to codefendant Paushter, as purr chaser, in accordance with an express agreement on the part of all defendants to pay plaintiff that amount. Judgment of the City Court of the City of. White Plains in favor of plaintiff reversed on the law, with one joint bill of costs on this appeal to defendants. As to defendant Paushter, the complaint is dismissed on the law, with costs to that defendant. As to defendants Bagley, a new trial is ordered. The provision in the contract of sale between defendants, to which plaintiff was not a party and in which his name was not incorporated as broker, whereby defendant Paushter promised defendants Bagley that he would pay any brokerage fee, was not expressly made for the benefit of plaintiff so as to enable him to bring an action based thereon directly against defendant Paushter. (Seaver v. Bansom, 224 N. Y. 233.) Although the pleadings were conformed to the proof, the charge of the court, constituting the law of the case, made the existence of an express agreement on the part of defendants Bagley to pay at the rate of 10% a prerequisite to any recovery, and the jury was not permitted to render a verdict for the reasonable value of the services performed by plaintiff. No credible evidence of such an express agreement was produced at the trial. Lewis, P. J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.  