Fitzsimons v. Drought — 16 A.D. 454

Majority

p. 454

Thomas P. Fitzsimons and De Lancey T. Smith, Appellants, v. William Drought and Catharine Walsh, Respondents.

Headnote

A complaint may present facts calling for either legal or equitable relief—action in equity to enforce against land, held, by a stranger, brokers’ commissions—-it cannot be changed into a legal action to recover the fees from the party liable therefor.

A complaint in an action may properly present the facts of a case in a double aspect, so that the plaintiff will be entitled either to legal or equitable relief. Where, however", the whole scheme of a complaint is to enforce in equity, by a resort to land, the title to which is in a stranger to the transaction, a brokers' contract for commissions, and the plaintiffs allege that they cannot bring any action to recover their commissions in a court of law, the action cannot be turned into a mere legal one to recover the commissions from one who is alleged to be liable to the brokers.

Appeal by the plaintiffs, Thomas P. Fitzsimons and another, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on-the 5th day of Januáry, 1897, upon the'decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review upon such appeal an interlocu

p. 455

tory judgment entered in said clerk’s office on the 15th day of December, 1896, sustaining the defendants’ demurrer to the complaint, and also an order entered in said clerk’s office on the 15th. day of December, 1896,' sustaining said demurrer.,

The complaint in this action alleged that the plaintiffs, who were brokers, rendered services to the defendant Drought in the sale of certain premises owned by him, and agreed that the amount of their commissions should be fixed by the selling price of certain real estate, which Drought had received as part consideration for the sale; that Drought subsequently executed a conveyance of this real estate to the defendant Walsh, which conveyance was made without consideration, and for the purpose of defrauding the. plaintiffs of their commissions.*

Judgment was demanded that the conveyance to the defendant Walsh be set aside; that the plaintiffs be declared to have an equitable lien upon the premises ; that the premises be sold and the plaintiffs’ commissions be paid out of the proceeds, and the balance be paid into court.

James P. Campbell, for the appellants.

Maurice Sichel and Paul Pf. Turner, for the respondents.

It is obvious, on the face of the complaint in this action, that the plaintiffs are not entitled to equitable' relief. They have no lien, and no right to a lien, on the real estate, and cannot reach it to enforce against it a mere claim for brokers’ fees. The only real question now before the court is, whether the plaintiffs are entitled to recover upon a legal cause of action under the averments of the complaint. Manifestly they are not as against the defendant Walsh, with whom they never stood in contract relations. It is urged, however, that enough appears to charge the defendant Drought with liability for damages for the breach of the contract to sell the real estate, and thereby have a sum ascertained and fixed upon which the plaintiffs would be entitled to a commission for .services rendered by them to Drought in the transaction mentioned in the complaint. That a complaint may properly present -the facts of a

p. 456

■case in a double aspect, so that the plaintiff would he entitled either to legal or equitable relief, is well settled (Bradley v. Aldrich, 40 N. Y. 512 ; Hale v. Omaha Nat. Bank, 49 id. 626 ; Sternberger v. McGovern, 56 id. 12; Margraf v. Muir, 57 id. 159; Wheelock v. Lee, 74 id. 500); but, looking at the averments of this complaint, it conclusively appears, that it was framed for equitable relief alone. Its object was to have Drought’s conveyance to Walsh declared null and void; to have a lien fastened upon the premises'; to have such premises sold and the proceeds applied first to the payment of commissions due the plaintiffs, and then the balance paid into court. A personal claim for .a money demand is not suggested; on the contrary, the allegation of .the- complaint is that the plaintiffs “ cannot bring any action to recover their commissions in a court of law.” Confessedly they did not intend to sue at law for such commissions, and, although .they may be mistaken in their view of their rights, and may have a legal cause of action against Drought, they have .not so set forth the facts as to enable them, to recover either on their original or modified ¡agreement, independently of the circumstances which they conceived authorized them, to sue for purely equitable relief. ' .

The whole scheme of the complaint is to enforce in equity, by a ■ resort to land, the title to which is in a stranger to the transaction, a broker’s contract for commissions, and it cannot be turned into a mere legal action for brokers’ fees against the party liable to the brokers.

The judgment must be affirmed, with costs.

Yak Bbunt, P. J., Rumsey, Williams and Paekee, JJ., concurred.

• Judgment affirmed, with costs.