
    GINSBERG v. LEVY.
    Circuit Court, Dade County, Civil Appeal.
    October 17, 1951.
    
      Milton R. Mannheimer, Miami Beach, for appellant.
    Courshon & Courshon, Miami Beach, for appellee.
   STANLEY MILLEDGE, Circuit Judge.

This appeal is from a judgment of the civil court of record granting defendant’s motion to strike the complaint (for a broker’s commission) as sham and entering summary judgment for the defendant. The defendant relied on the discovery deposition of the defendant and the plaintiff offered two affidavits in opposition to the motion.

In striking the complaint as sham the court necessarily passed on the credibility of the witnesses. There is testimony which, if believed, will support a judgment for the plaintiff.

Probably the plaintiff’s deposition does not literally support the complaint, which alleges performance in accordance with a specific listing rather than the production of a prospective buyer on terms finally satisfactory to the defendant, but that the complaint may require amendment is of no significance on summary proceedings.

The only question is whether there is a triable issue. There is a triable issue here. The judgment is reversed so that the case may be tried by a jury.  