
    MASHKOWITZ v. O’CONNELL.
    (Supreme Court, Appellate Term.
    March 23, 1905.)
    On Reargument. Judgment affirmed.
    For former opinion, see 91 N. Y. Supp. 115.
    Argued before BISCHOFF and GILDERSLEEVE, JJ.
   PER CURIAM.

The dismissal of the complaint upon the merits involved a determination that the plaintiff was not entitled to recover, as matter of .law. Municipal Court Act, § 249 (Laws 1902, p. 1561, c. 580). Hence it is to be assumed that the decision proceeded upon the admitted fact that the contract of employment of the broker was not in writing. A determination adversely to the plaintiff upon any of the issues in the case would necessarily have been expressed in the direction for judgment for the defendant, without more. The disposition made of the case is supported by authority. Whiteley v. Terry, 83 App. Div. 197, 82 N. Y. Supp. 89.; Cohen v. Boccuzzi, 42 Misc. Rep. 544, 86 N. Y. Supp. 187. And the judgment is therefore to be affirmed. In view, however, of the distinction suggested in Cody v. Dempsey, 86 App. Div. 335, 83 N. Y. Supp. 899, leave to appeal to the Appellate Division will be granted.

Judgment affirmed, with costs.  