(dissenting):
I dissent. The contract, as plaintiff alleges it, is that defendants would deliver to him, in specie, one-half of the gross consideration received for the land, over and above a given sum. It is not a contract for the payment of money alone. I think that the case falls within the principle of Marston v. Gould (69 N. Y. 220) and Marvin v. Brooks (94 id. 71).
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.