Order unanimously modified in accordance with the memorandum and as so modified affirmed, with costs to defendant.
Memorandum:
The court's direction that a Referee be appointed to determine the amount of damages, if any, sustained by plaintiff by reason of the defendant's failure to pay commissions was, in effect, a determination of the factual issue raised by the moving papers as to whether there was an agreement to pay commissions. Under CPLR 3212 (subd...
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