(dissenting in part). I believe that the interests of justice would be best served by ordering a new trial to give plaintiff, who has labored long and arduously to earn his commission, the opportunity of proving his right to recover damages, because of the alleged wrongful conduct of defendant, in preventing plaintiff from obtaining the necessary consent and approval of the owners of the fee, which but for defendant’s alleged arbitrary and wrongful acts would have been had. 1 therefore vote for reversal and for a new trial rather than for the dismissal of the complaint.
Callahan and Van Vooehis, JJ., concur with Does, J. P.; Cohn, J., concurs in result in an opinion; Shientag, J., dissents in part in an opinion.
Judgment reversed, with costs to the appellant, and the complaint dismissed, with costs. Settle order on notice.