Opinion
April 8, 1957
In an action by a real estate broker against an owner to recover a balance alleged to be due on account of commissions, the answer contains a counterclaim against the broker and the owner's attorney, not originally a party to the action, to recover damages alleged to have been sustained by breaches of their duty. The Special Term (1) granted the broker's motion to dismiss the counterclaim as to it for insufficiency, with leave to serve an amended answer, and denied its motion for summary judgment, and (2) granted the attorney's motion to dismiss the counterclaim as to him for insufficiency, with leave to serve an amended answer. The appeals are from so much of the orders entered thereon as dismissed the counterclaim. Orders affirmed, with one bill of $10 costs and disbursements to each respondent. There are no factual allegations set forth in the counterclaim which would serve to render liable the broker and the attorney by reason of appellant's execution of leases. Wenzel, Acting P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.