Benjamin Schwartz, Appellant, v. Henry H. Frieder and Another, Respondents

Benjamin Schwartz, Appellant, v. Henry H. Frieder and Another, Respondents. First Department, December 11, 1936. Meyer Rivowitz, for the appellant. William Gold of counsel [George Goldberg with him on the brief; Levy, Gutman & Goldberg, attorneys], for the respondents. [MAJORITY — Per Curiam.] Per Curiam. The order and judgment appealed from were granted because the second defense pleaded was deemed sufficient. It is to the effect that the services rendered by the plaintiff were of such a character as to require him to be possessed of a real estate brokerage license. (Real Prop. Law, § 440-a.) The view thus adopted was erroneous. The complaint and papers submitted in opposition to defendants’ motion present an issue as to whether the services were not those of a business broker rather than a real estate broker, within the rule of Weingast v. Rialto Pastry Shop, Inc. (243 N. Y. 113). It follows, therefore, that the order and judgment should be reversed, with costs, and the motion denied, with ten dollars costs. Present — Martin, P. J., O’Malley, Townley, Glennon and Cohn, JJ. Judgment and order unanimously reversed, with costs, and the motion denied, with ten dollars costs.