John Reis Co. v. Zimmerli — 155 A.D. 260

Majority

p. 260

John Reis Company, Appellant, v. Edward Zimmerli, Respondent.

Second Department,

February 14, 1913.

Headnote

Pleading—broker’s action for commissions—failure to state cause of action—scope of amendment.

A complaint in a broker’s action for commissions setting out a contract whereby the broker was entitled to commissions “upon passing of title as agreed ” fails to state a cause of action where it is not alleged that the title passed, or that it failed to pass by reason of some fault on the part of the defendant.

p. 261

The court in sustaining a demurrer to such complaint and allowing the plaintiff to plead over should not limit the allegations to be added by amendment, for the plaintiff is entitled to set forth any facts which may entitle him to recover.

Appeal by the plaintiff, John Reis Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of December, 1912, dismissing plaintiff’s complaint upon the pleadings and permitting the plaintiff to amend the complaint.

Henry M. Dater [George F. Elliott and Jay S. Jones with him on the brief], for the appellant.

Leonard J. Reynolds [Richard A. Geis with him on the brief], for the respondent.

The plaintiff brings this action to recover a commission alleged to have been earned in the selling of certain real estate for the defendant. The complaint alleges the employment, and that its representative procured a purchaser ready, willing and able to make the purchase upon the terms fixed by the defendant, and that such contract was actually entered into between the defendant and the proposed purchaser, and that by the terms of such contract the defendant recognized, the plaintiff’s representative as the procuring cause of the sale and agreed to pay the sum of two and one-half per cent upon the purchase price of $45,000, upon terms fixed by the said defendant, “ upon passing of title as agreed.” The complaint fails, however, to allege that the title to said premises ever passed, or that it failed to pass by reason of any fault on the part of the defendant, and we are clearly of the opinion that under the authority of Larson v. Burroughs ( 131 App. Div. 877 ) the learned court properly sustained the defendant’s demurrer to the complaint and permitted an amendment thereto.

We apprehend, however, that the learned court at Special Term did not intend, by its order, to limit the right of the plaintiff in pleading over to the particular allegations suggested. A party has a right to plead his cause of action, what

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ever it may be, and where the demurrer is upon the ground that the facts stated did not constitute a cause of action, it is proper that the plaintiff should be permitted to plead such other and further facts as he may have in support of his claim, and if the order appealed from may be interpreted to limit the plaintiff to “ affirmatively alleging that the contract annexed to and made a part of the complaint was not carried out and that the non-performance of the same was the fault of the defendant,” it should be modified so as to permit the plaintiff to set forth any facts which may entitle him to recovery in the present action. Under the circumstances, we think the costs and disbursements of this appeal should be allowed the respondent. As thus modified, the order appealed from should be affirmed, with ■ ten dollars costs and disbursements to the respondent.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Order modified in accordance with opinion, and as so modified affirmed, with ten dollars costs and disbursements to the respondent.