
    Hyman Rintel, Respondent, v. Morris Steinberg, Appellant.
   Judgment modified by reducing the recovery to the sum of $525, and as so modified unanimously affirmed, without costs. Order denying defendant’s motion for a new trial upon the ground of newly-discovered evidence affirmed. This action was brought upon an express contract made by defendant to pay to plaintiff a commission at the rate of two and one-half per cent for the sale or exchange of his property, and not upon the theory that defendant breached a contract made with plaintiff to procure for him property in exchange for his own, knowing that the owner of the other parcel was to pay him a commission. The recovery must be limited to the damages resulting from the breach of the contract alleged and proved upon the trial. Further, plaintiff was to procure for defendant, for the purpose of exchange, a proposition involving other property at the best terms possible. This involved negotiation and the utmost good faith on plaintiff’s part, and plaintiff was not justified in entering into a contract with a third party to act for him upon a commission basis without defendant’s knowledge. (Erland v. Gibbons, 176 App. Div. 552, and eases cited.) This feature, however, does not defeat plaintiff’s recovery to the extent allowed, for the reason that the point was not raised. The theory upon which the ease was submitted to the jury is the law of the case. Present — Lazansky, P. J., Rich, Young, Hagarty and Scudder, JJ.  