
    William A. Williamson, Appellant, v. Atlas Powder Company, Respondent.
    
      Commissions — action to recover broker’s commissions on sale of merchandise.
    
    
      Williamson v. Atlas Powder Co., 212 App. Div. 68, reversed.
    (Argued October 20, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered March 3,1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover broker’s commissions upon a sale of merchandise. Upon the trial no attempt was made to show that plaintiff was the producing cause of the sale but it was argued that plaintiff was entitled to the commission under a certain agreement by. the terms of which plaintiff surrendered a right to brokerage on another sale. The Appellate Division directed a dismissal of the complaint on the ground that the alleged agreement had not been pleaded.
    
      William H. Clark for appellant.
    
      James B. Duross for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division, on the dissenting opinion of Merrell, J., below.

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