
    Horatio J. Levy, Respondent, v. Harry Niklad, Appellant.
    Second Department,
    March 11, 1940.
    
      
      Jay Leo Rothschild [Walter S. Beck with him on the brief], for the appellant.
    
      Arthur D. Brennan, for the respondent.
   Per Curiam.

This action was brought originally by plaintiff, a real estate broker, against Long Estates, Inc., as defendant, to recover commission upon the procurement of two leases of certain real property executed by the latter to W. T. Grant Company. Upon application of that defendant an order was made interpleading the present defendant Niklad and substituting him as such, upon the original defendant paying to the treasurer of the county of Westchester $9,250, which sum was accordingly paid. Subsequently issue was duly joined between the present parties. Each pleaded in effect that he was the procuring cause of the leases. The issues were tried before the court and a jury at the Trial Term. After the conclusion of the proofs, but before submission of certain questions of fact to the jury, the plaintiff duly made the contention that the action in its form at that time was in equity. The jury answered, in a manner favorable to the defendant, specific questions of fact submitted. The trial justice thereafter, in disregard of the jury’s verdict, made findings of fact and conclusions of law upon which judgment was entered in favor of the plaintiff, directing the payment to him of the amount on deposit with the treasurer of the county of Westchester. From that judgment defendant appeals.

This became an equity action upon the interpleader of the present defendant. (Clark v. Mosher, 107 N. Y. 118, 122.) Neither party had a right to the trial of the issues of fact before a jury. The jury’s findings were merely advisory. They were not binding on the court under the circumstances disclosed in this record. The court had a right to refuse to adopt them and to make its own findings. (Carroll v. Deimel, 95 N. Y. 252, 255.) Upon sufficient evidence the court found that the plaintiff was and that the defendant was not the procuring cause of the leases.

The judgment should be affirmed, with costs.

Present — Lazansey, P. J., Hagarty, Carswell, Adel and Taylor, JJ.

Judgment unanimously affirmed, with costs.  