Majority
This is an action to recover commissions for the sale of the plant and business of the defendant in the city of New York, consisting of a printing and publishing establishment, real property, machinery, plates and planting presses, several publications and the good will of all the business. The price fixed for the property was $2,000,000, and the commission to be paid in case of a sale was fixed at $75,000, and that is the amount claimed in this action. The complaint was dismissed upon the trial because no sale was established. There was no effort to prove a sale because none had been effected, but the plaintiff claimed the right to recover without showing a sale on the ground that the defendant had overstated the productivity of the plant. The plain and conclusive answer to the proposition was that the defendant had not made any representations upon the subject. We think the judgment may be sustained upon two grounds: First, the defendant never employed the plaintiff to make the sale, and, second, that no sale was ever made. The judgment should be affirmed, with costs. Barnard, P. J., and Pratt, J., concurred. Judgment affirmed, with costs.