Crasto v. White — 23 N.Y. St. Rep. 535

Majority

p. 535

Frank P. Crasto, App’lt, v. Richard White, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

1. Separate defenses—Demurrer—Code Civ. Pro, § 507.

Where a separate defense, containing allegations and denials, can, under no possibility, refer to any but a particular cause of action set out

p. 536

in the complaint, it is not necessary, under section 507 of the Code, that it should be stated upon the face of the defense itself that it is a defense-to that particular cause of action.

3. Costs—Judgment—Code Crv. Pro., § 8338.

If a defendant succeeds as to any of the causes of action set forth in the complaint, he is, by section 3338 of the Code of Civil Procedure, entitled to costs as against the plaintiff. And, consequently, if the plaintiff does not avail himself of leave to withdraw his demurrer and pay the costs thereof, the defendant is, by the provisions of the Code, entitled, upon the entry of the final judgment in the action, to costs as to this cause of action, and, consequently, a direction for final judgment for the defendant on the demurrer to the fourth defense, was not erroneous.

Appeal by the plaintiff from interlocutory judgment and order overruling demurrer to the fourth defense set forth in defendants’ amended answer.

W. E. Benjamin, for app’lt; Leopold Sandheim, for resp’t.

The plaintiff, in his complaint, sets up two causes of action : First, for services in procuring a loan for defendants upon their real estate ; and second, for services in endeavoring to perfect defendants’ title to the lots in question. The defendants put in an answer, by which they denied various allegations contained in the complaint as to the first cause of action, and for a further and fourth defense, alleged the employment of the plaintiff and his firm to procure a loan for the defendants upon certain premises owned by them, for the procurement of which the defendants agreed to pay them the legal brokerage. In this defense it is alleged that the defendant performed his part of said agreement, and that the plaintiff and his firm never performed their part; that they never procured the loan, although the defendant offered to give his bond to secure the repayment of the sum to be loaned, and also a mortgage, in fee simple, upon the premises mentioned, which were free from all incumbrances, and wrhich he owned, and now owns, in fee simple.

The principal ground relied upon to sustain the demurrer to this defense is, that it is not good as a defense to both causes of action set up in the complaint, and that it does not distinctly refer to the first cause of action, as required by section 507 of the Code.

That section provides that a defendant may set forth, in his answer, as many defenses or counter-claims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defense or counter-claim must be separately stated and numbered, and unless it is interposed as an answer to the entire complaint, it must distinctly, refer to the cause of action which it is intended to answer.

It is claimed because it is not stated to be a defense to

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the first cause of action upon the face of the defense.itself, that, therefore, it is bad. We fail to find any such provision contained in the section which has been cited. We suppose that where a separate defense contains allegations and. denials which can, under no possibility, refer to any but a particular cause of action set out in the complaint, they distinctly refer to that cause of action, and cannot refer to another. This is the condition of the allegations contained in the fourth defense. They can only apply to the first cause of action, and to none other. They are utterly foreign to, and have nothing to do with the second cause of action; and if an allegation or denial can only refer to a particular cause of action in the complaint, we see no reason for saying that the Code is not complied with. If it can by no possibility refer to but one cause of action, it is difficult to see how it could more distinctly refer to the cause of action which it was intended to answer, where more than one is set out in the complaint.

But there may be urged another objection to the demurrer, namely, that the plaintiff does not state any cause of action in his so called first cause of action, and this is apparent upon the face of the pleadings. The plaintiff alleges that he and his firm were employed to procure a loan upon the defendant’s property, but he nowhere alleges that such loan was ever procured. He alleges that he had secured an offer from the United States Life Insurance Co., to loan that sum, which offer was accepted. But that is not the contract which he was employed to perform. His employment was to procure a loan, and the procurement and acceptance of the offer was but one of. the steps toward the procuring of the loan, and if without any fault upon the defendant’s part the loan was not secured in pursuance of that offer, it is clear that the contract has not been complied with. As has been already stated, there is not a single allegation contained in the first cause of action, that there has been a compliance with the contract.

The learned counsel seems to assume that it is well settled law, that where a man performs half of his contract he is entitled to recover compensation for the whole. We do not understand this to be the law, as applicable to the right to recover upon such a contract. He has been probably led astray by being unable to distinguish between contract to procure a loan and a contract to procure a purchaser, where the purchaser does not subsequently take for some reason. When a broker is employed to procure purchaser, when he presents to the other a person who is able and willing to contract for the purchase of the property, his duties are fulfilled; and. if the party refuses to

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accept, or after contract signed, the purchaser improperly refuses to take, it does not affect the right of the broker to his compensation.

There his contract was to procure a purchaser, able and willing to purchase, and when he presents him his commissions are earned. In the case at bar, the contract was to procure a loan, not to procure somebody who said he was willing to make a loan, and then refuses to carry out his promise. That was not the contract. The contract was to procure a loan; and if without any fault upon the part of the defendant, the party who had offered to make the loan, refuses to do so, the contract is not fulfilled. There is no way in which a party can compel another to make a loan, the case being entirely different from that of a purchaser of real estate who could be compelled to complete.

The claim that the interlocutory judgment should be reversed as erroneous in directing final judgment for the defendant on the fourth defense, is not well founded, If the defendant succeeded as to any of the causes of action set forth in the complaint, he was, by section 3228 of the Code, entitled to costs as against the plaintiff. And, consequently, if the plaintiff did not avail himself of the leave to withdraw his demurrer and pay the costs thereof, the defendant was, by the provisions of the Code, entitled, upon the entry of the^ final judgment in the action, to costs as to this cause of action, and this is all that the interlocutory judgment gives him.

This judgment could not, probably, be finally entered until the issues as to the other cause of action were tried; but it was entirely correct to give the direction for its entry, so that it might be entered when the proper time arrived. The express provision of the interlocutory judgment is, that the defendant have judgment upon the demurrer, which simply affected the first cause of action, and that was all that was intended to be covered by the judgment in question.

The judgment and order appealed from should be affirmed, with costs, and with leave to the plaintiff to withdraw the demurrer upon payment of the costs below and of this appeal.

Bartlett, J., concurs.