
    EDWARD O. SMITH, PLAINTIFF-APPELLANT, v. JOSEPH PAZEN AND SARAH PAZEN, DEFENDANTS-APPELLEES.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Sale of Real Estate — Broker’s Commissions — Contract Provided Th^it “Regular Brokerage Commission” Shall be Paid — Held, That This Does Not Comply With the Statute of Frauds.
    On appeal from the Hudson Circuit.
    Before Justices Paekee, Mintuen and Campbell.
    Eor the appellant, Charles Hershenstein.
    
    For the appellees, David M. Elausner.
    
   Per Curiam.

Appellant brought suit to recover brokerage on a contract for exchange of properties in West New York and Ramsey, New Jersey. The contract provided: “It is understood and agreed that E. O. Smith, broker, of 494 Jackson -avenue, Jersey City, N. J., is the broker who consummated this exchange, and the respective parties hereby agree to pay the said E. O. Smith the regular brokerage commission on their respective properties as per prices mentioned in this agreement.”

The appellees moved to strike- out the complaint upon the ground that it did not comply with the statute of frauds in that the rate of brokerage was not fixed by the brokerage agreement upon which the action was based. The appellees contended that the statute was satisfied in this particular inasmuch as the real estate brokers of Hudson county had established and'fixed a schedule of rates.

The complaint was struck out upon authority of Hueth v. Stevenson, 100 N. J. L. 1, which holds: “A provision in a brokerage contract for the sale of land, that in case the broker shall procure a purchaser for the property the owner 'will allow you the legal rate of commission/ will not support an action brought by the broker to recover such commission. The tenth section of the statute of frauds bars such an action unless the rate of commission on the dollar is stated in the contract.”

The case before us is not like unto that of Haber v. Goldberg, 92 N. J. L. 367, which holds: “Although in an agreement between a principal and his broker for the sale of real estate the rate of commission on the dollar is not provided for as required by the terms of section 10 of the statute of frauds, nevertheless, the fixing of a sum certain by way of commission is within the true intent and meaning of the act and the broker is entitled to recover it.”

The judgment under review must therefore be affirmed, with costs.  