The action is for commissions for the sale of real estate, and on a former appeal (87 App. Div. 518) this court held'that the contract between the plaintiff and the defendants was a several one and that the defendants were not jointly liable to the plaintiff. Only the present appellants were personally served, the others being nonresidents and served only by publication and not appearing. Judgment for the full amount of commissions owing by all defendants was obtained both on the former and subsequent trials against the two defendants personally served.
The evidence adduced on the second trial does not differ in any material respect from" that appearing on the first trial. The only new evidence is that of the plaintiff, who testifies that at a time when all the defendants or their representatives were present and the first installment of $200 on the purchase of the property was paid, the defendant Fahys handed the money to one of the defendants and said: “ Credit that to the West Hoboken Syndicate.’? There is no proof as to who composed this syndicate or that it was-composed of these defendants, or that there was any joint ownership or joint venture by these defendants with respect to the real *596estate in question. Plaintiff further testified to declarations of Fahys that all'the others would do whatever he did, and 'that a representative of defendant Blythe .said that whatever Fahys would do all the others would do. ,
If these declarations were material they would -only he evidence against the party making them, for the declarations of one defends ant do not bind the other defendants in the absence of proof of assent or proof that all were engaged, in a joint enterprise.
The complaint alleges joint liability and the second trial as well as the first proceeded upon that theory. Ho facts were proven which met the objection to plaintiff’s recovery pointed out oil the. former appeal; and the judgment and order must be reversed and a new trial granted, with costs to appellants to abide the event.
. O’Brien, P. J., Patterson, McLaughlin and Clarke, . JJ., concurred.
Judgment and order reversed, new trial ordered) costs to appellant^ to abide event. •