dissents in a memorandum as follows: I would affirm for the reasons stated by Justice Harold Baer, Jr. Plaintiffs plainly allege an oral agreement with Cutler to divide commissions which might be earned upon the sale of the Kaye property. Cutler alleges that there was no such agreement. She asserts that plaintiffs’ claim is based solely on the fact that a "listing sheet” containing a description of the property was given to Cutler by plaintiffs.
The majority concedes that an agreement to share commissions existed. However, it finds that agreement related only to a specific client, Mrs. Matzner, and no one else. That conclusion is premised upon weighing the affidavits and deposition testimony of the persons involved. There is no writing which points in any direction.
It is undisputed that it was Cutler and not plaintiffs who introduced the purchaser to Kaye. However, that is not determinative. Plaintiff brokers do not claim a right to split commissions for merely bringing the Kaye listing to the attention of Cutler, the procuring broker. They assert that at the time it was brought to her attention, there was an agreement to split commissions. At that time the Kaye townhouse was listed with plaintiffs on an open and nonexclusive basis. The alleged fact that Cutler later obtained an open and nonexclusive listing from Kaye is not dispositive.
*471Thus there is a triable issue of fact as to the nature of the agreement, as Special Term held. However much we may doubt that plaintiffs’ claim can be proved, that is not a basis for granting summary judgment against them. On a motion for summary judgment the function of the court is issue finding, not issue determination (Epstein v Scally, 99 AD2d 713; Esteve v Abad, 271 App Div 725). If there is a material issue of fact, the motion must be denied (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).
We are not to weigh the credibility of the affiants (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Cross v Cross, 112 AD2d 62, 64; 175 Check Cashing Corp. v Chubb Pac. Indem. Group, 95 AD2d 701, 702). There simply is no writing either way. There are affidavits of Willner, Josif, and Cutler, and portions of their depositions. Each gives a different version of the conversation upon which plaintiffs rely. There is a patent issue of credibility which can only be resolved upon a trial.