Arthur J. Calace, Jr., Appellant, v. Gladys E. Van Sise, as Executrix of Harold S. Van Sise, Deceased, Respondent

Arthur J. Calace, Jr., Appellant, v. Gladys E. Van Sise, as Executrix of Harold S. Van Sise, Deceased, Respondent. [MAJORITY] In an action to recover unpaid commissions under a brokerage agreement, plaintiff appeals from an order of the Supreme Court, Suffolk County, entered April 22, 1965, which denied his motion for summary judgment. Order affirmed, without costs. In our opinion, the record discloses at least two questions of fact which require development at a trial. First, defendant’s answers contains an assertion that plaintiff was a participant in the compromise transaction which resulted in a satisfaction of the mortgage. An exhibit annexed to plaintiff’s moving affidavit contains an assertion that plaintiff was a member of the syndicate which purchased the property. Plaintiff denied these assertions. In our opinion, whether and to what extent plaintiff participated in the compromise transaction should be determined. Secondly, the record does not indicate the value of the property which was reconveyed to defendant in consideration of his satisfaction of the mortgage, making it impossible to determine whether plaintiff would be entitled to the full amount of the unpaid commission. Beldock, P. J., Ughetta, Brennan, Rabin and Benjamin, JJ., concur.