Judgment and order reversed on the facts and new trial granted, with costs to the appellants to abide the event, on the ground that the finding of the jury that the plaintiff was the procuring cause of the sale was against the weight of the evidence. The plaintiff’s theory throughout the trial was to the effect that plaintiff was the procuring cause and the court charged that if plaintiff did not secure the purchaser he was not entitled to recover. In view of these circumstances the judgment cannot be sustained on the theory of bad faith embodied in plaintiff’s request to charge, evidently founded upon the principle laid down in Sibbald v. Bethlehem Iron Company (83 N. Y. 378). All concur. (The judgment is for plaintiff in an action to recover real estate commissions. The order denies a *1055motion for a new trial.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.