
    Shea-Lutz Realty Co., Inc., Plaintiff, v. Howard E. Sperry and Others, Defendants.
    
    Supreme Court, Monroe County,
    April 25, 1929.
    
      Sutherland & Dwyer, for the plaintiff.
    
      Weldgen, Greene & Newton, for the defendants Hardiman.
    
      Van Alstyne, Toan & Allen, for the defendants Sperry.
    
      
       See, also, 132 Misc. 878, 879.
    
   Rodenbeck, J.

The defendants made a contract for the exchange of properties, and in it the defendant Sperry and the defendant Hardiman and his wife agreed to pay their respective parts of the broker’s commissions, and the defaulting party was to pay all of the commissions. This contract between the defendants as to the commissions depended upon the plaintiff being entitled to commissions, and this legal right depended upon the existence of a contract with it in relation to the exchange of the properties. The defendants agreed to pay a part or the whole of the commissions which might be earned, and, if none were earned, none were due. The complaint is, therefore, insufficient in that it does not show any relationship between the plaintiff and the defendants. All that appears is that the defendants agreed to pay commissions, as between themselves, to the plaintiff if those commissions were earned. The plaintiff appears to be a mere beneficiary on the face of the contract for the exchange of properties, and, as such, does not come within any of the rules of law which would entitle it to sue as such beneficiary under the contract made between the defendants. (Seaver v. Ransom, 224 N. Y. 233.)

Motion to dismiss complaint granted; to strike out parts of answers denied; with leave to’ the plaintiff to amend within twenty days from the service of an order in accordance herewith, with ten dollars costs against the plaintiff to abide the event.

So ordered.  