
    Harry L. Horn, Appellant, v. Fred H. Bennett, Respondent, and Harry W. Bennett, Defendant.
   Action against the president and secretary-treasurer, as individuals, to recover a commission for the sale of the corporate business. Judgment dismissing the complaint reversed on the law and in the interests of justice and a new trial granted, with costs to appellant to abide the event. It is claimed that upon the trial in another action, wherein the plaintiff sued the corporation, the defendant-respondent took the position that he was not authorized by the corporation to hire plaintiff. The complaint in that action was dismissed. The plaintiff now sues the individuals, alleging that they, as officers of the corporation, represented to the plaintiff that they were duly authorized by the corporation to procure a purchaser and that such representation was untrue. The plaintiff was deprived of the opportunity of establishing the facts as testified to on the prior trial or otherwise, which testimony may or may not constitute a basis for an estoppel. A new trial should be had with that opportunity available. Furthermore, the court erred in holding there was not sufficient proof that Fred H. Bennett had employed plaintiff. Lazansky, P. J., Carswell, Davis, Adel and Close, JJ., concur.  