The opinion
Action for damages by a real estate broker in an amount equal to the commission he would have received from the seller of certain real property, which commission he lost by reason of the defendant prospective buyer’s refusal to go through with an agreed upon purchase of the property. Judgment for the plaintiff on a directed verdict reversed on the law, with costs, and the complaint dismissed, with eost*There was no express agreement made by the prospective purchaser to pay commissions to the broker. It is conceded that there was no oral agreement to pay such commissions or any oral agreement of employment by the prospective purchaser. The only writing claimed to constitute an agreement in which the prospective purchaser impliedly agreed to pay such commissions is plaintiff’s Exhibit 1. Read in the setting of the negotiations between the parties and in the light of the fact that the formal agreement provided for payment of commissions by the seller, it is not fairly inferable from that writing that the prospective buyer agreed to pay commissions to the plaintiff or agreed to become liable for such commissions in the event the deal was not consummated by reason of the prospective buyer withdrawing from the deal. (Grossman v. Herman, 266 N. Y. 249 ; Niesen v. Galewski, 240 id. 652.) Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.