
    Sidney Mandell, Respondent, v. Frank Moses, as President of the Essex County Sheep Breeders’ Association, et al., Appellants.
    
      Contract — brokers — action by broker to recover moneys advanced on goods consigned to him for sale upon decline in market price of goods.
    
    
      Mandell v. Moses, 209 App. Div. 531, affirmed.
    (Argued October 13, 1924;
    decided November 25, 1924.)
    Appeal from a judgment, entered June 6, 1924, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury and directing judgment in favor of' plaintiff. John E. Mc-Murtry & Co., plaintiff’s assignor, entered into an agreement with the “ Essex County Sheep Breeders’ Association ” in and by which the association was to consign its clip of wool to the said John E. McMurtry & Co. “ to be sold for their account at the best market price.” McMurtry & Co. were to advance to the association, according to grade, from fifty cents down to' thirty-five cents a pound, which amount was at no time to be more than eighty per cent of the value of the wools “ at the time of taking up; ” “ and if the market declines at that time said advances are to be reduced to meet said market.” The association further agreed to pay McMurtry & Co. six per cent commission; this was to include all charges for sacking, sale, etc., and there was to be a charge in favor of the brokers of six per cent on moneys advanced under certain conditions. There came a time when the market value went down and McMurtry & Co. had paid $2,522.18 over the eighty per cent before sales were made. The association did not refund; the claim was assigned to plaintiff and this action was brought to recover the amount paid.
    
      Andrew J. Nellis for appellants.
    
      Frederick C. McLaughlin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Pound, McLaughlin, Crane and Andrews, JJ. Dissenting: Cardozo and Lehman, JJ.  