• — Action to recover brokerage commissions under a contract which provided that such commissions were deemed earned upon the closing of title to real property. The sellers, respondents on this appeal, tendered title which the representative of the title company, which company had been retained by the purchasers, approved and was ready to insure. But title did not pass; and the purchasers and respondents cancelled the contract upon the refunding by respondents of part of the deposit made on the signing of the contract, which refund might have been retained in full as liquidated damages. The appellant, as an attorney at law, represented the purchasers at the time of the settlement. Thereafter, appellant claimed brokerage commissions and respondents offered to permit the purchasers to perform notwithstanding the prior settlement and cancellation of the contract. Order granting respondents’ motion for summary judgment and judgment entered thereon affirmed, with $10 costs and disbursements. No opinion. Adel, Wenzel, Schmidt and Beldock, JJ., concur; Nolan, P. J., dissents and votes to reverse the order, to vacate the judgment, and to deny respondents’ motion for summary judgment, on the ground that the record presents questions of fact, which may not be determined on affidavits. (Cf. Amies v. Wesnofske, 255 N. Y. 156, and Hirschfeld v. Jamaica Sav. Bank, 257 App. Div. 991.) [See post, p. 814.]