(dissenting). A reversal here necessarily requires the disapproval and overruling of our decision in Pease & Elliman, Inc., v. Gladwin Realty Co., Inc. (216 App. Div. 421), which is not distinguishable on the facts or in principle. This should *530not be done unless we are fully convinced that the Court of Appeals has itself entirely disapproved of the rule enunciated therein and the authorities on which it was based by its recent decision in Fox Co. v. Wohl (255 N. Y. 268). Especially is this true since the rule of Pease & Elliman, Inc., v. Gladwin Realty Co., Inc. (supra), has been recognized and applied in this department since it was first enunciated in James v. Home of Sons and Daughters of Israel (153 N. Y. Supp. 169 [1915]), followed in McKnight v. McGuire (117 Misc. 306 [1921]), and finally recognized by this court in Pease & Elliman, Inc., v. Gladwin Realty Co., Inc. (supra [1926]). The Court of Appeals in Parker v. Simon (231 N. Y. 503) did not criticise this fine of authorities, citing James v. Home of Sons and Daughters of Israel (supra), but sought rather to distinguish them. In Fox Co. v. Wohl (supra) the Pease & Elliman decision and the cases upon which it was based were regarded as “ exchange ” cases, which they were not. If Fox Co. v. Wohl (supra) is not to be confined to “ exchange ” cases merely, but taken as overruling the Pease & Elliman case entirely, a clear expression of such an intent should be given by the court of last resort. I find no such expression contained in the opinion.
I, therefore, vote for affirmance of the judgment.
Judgment reversed, with costs, and complaint dismissed, with costs.