
    Edward W. Duryee, Appellant, v. James H. Parker and Others, Composing the Firm of J. H. Parker & Co., Respondents.
    
      Action to recover commissions agreed to be paid on business secured for the defendant — what failure of the customers to pay certain expenses is not a defense—what allegations as to losses which the customers refused to pay, constitute a counterclaim.
    
    In an action brought to recover a balance of commissions alleged to be due from the defendants under a contract between them and P. Flussfisch & Co., the plaintiff’s assignor, whereby the defendants agreed to pay the plaintiff’s assignor a commission of three-eighths of a cent a bushel upon all the American grain business which the plaintiff’s assignor should secure for the defendants, the defendants interposed an answer setting forth as a separate defense and counterclaim the following:
    “ Seventh. For a further and separate defense they allege that in any by the agreement made between them andP. Flussfisch & Co., the said P. Flussfisch & Co., bound themselves to send defendants orders from only first class firms who would pay to defendants a commission of one percent per bushel on the wheat sold or bought by defendants for them, of which commission said defendants agrees to credit said P. Flussfisch & Co. three-eighths, and the said first-class firms were to pay all cable expenses; that said first-class firms have refused to pay defendants any of said commissions or cable expenses, but on the contrary owe defendants §14,150.13 on the transactions (less f of a cent per bushel for commissions to P. Flussfisch & Co.); and that defendants are not -due and owing said P. Flussfisch & Co., nor P. Flussfisch or plaintiff any commissions or money whatever.
    
      “Eighth. For a counterclaim to the alleged cause of action these defendants aver that in and by the agreement made between them and P. Flussfisch & Co., the said P. Flussfisch & Co. bound themselves to send defendants orders from ■only first-class firms, and said P. Flussfisch & Co. committed a breach of said' contract by sending defendants orders from firms that were not first class, .and who refused to pay certain losses sustained by them on the transactions, .and thereby said P. Flussfisch & Co. caused these defendants loss and damage in the sum of §14,150.13 (less f of a cent per bushel for commissions to P. Flussfisch & Co.) which was never paid nor any part thereof.”
    
      Meld, that the separate defense was demurrable, but that the counterclaim was not.
    Appeal by the plaintiff, Edward W. Duryee, from an interlocutory 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 1st day of October, 1904, upon the decision of the court rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the separate defense and counterclaim set out in the defendants’ answer, and also from an order entered in said clerk’s office on the 29 th day of June, 1904, directing the entry of the said interlocutory judgment.
    The action was brought to recover a balance of commissions alleged to be due from the defendants under a contract between them and P. Flussfisch & Co., the plaintiff’s assignor, whereby the defendants agreed to pay the plaintiff’s assignor a commission of three-eighths of a cent a bushel upon all the American grain business .which the plaintiff’s assignor should secure for the defendants.
    The separate defense and counterclaim, the demurrer to which was overruled, are as follows:
    “ Seventh. For a further and separate defense, they allege that in any by the agreement made between them and P. Flussfisch & Co., the said P. Flussfisch & Co., bound themselves to send defendants orders from only first class firms who would pay to defendants a commission of one per cent per bushel on the wheat sold or bought by defendants for them, of which commission said agrees to credit said P. Flussfisch & Go. three-eighths, and. the said first class firms were to pay all cable expenses; that said first class firms have refused to pay defendants any of said or cable expenses but on the contrary owe defendants. $14,150.12 on the transactions (less f of a cent per bushel for to P. Flussfisch & Co.); and that defendants are not due= and owing said P. Flussfisch & Co. nor P. Flussfisch or plaintiff any commissions or money whatever.
    “ Eighth. For a counterclaim to the alleged cause of action these defendants aver that in and by the agreement made between them and P. Flussfisch & Co., the said P. Flussfisch & Co. bound to send defendants orders from only first-class firms, and said P. Flussfisch & Go., committed a breach of said contract by sending defendants orders from firms that were not first-class, and who refused to pay certain losses sustained by them on the and thereby said P. Flussfisch & Co. caused these loss and damage in the sum of $14,150.12 (less'f- of a cent for commissions to P. Flussfisch & Co.), which was never paid nor any part thereof.”
    
      Dudley R. Horton, for the appellant.
    
      John R. Abney, for the respondents.
    
      
      
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   Per Curiam :

Under the settled practice the appeal from the order demurrer must be dismissed. All the questions which the appellant seeks to raise are presented by the appeal from the judgment.

We think the demurrer to the separate defense set up in Y of the answer should have been sustained. That paragraph alleges in substance that in and by the agreement between the defendants and plaintiff’s assignors, the latter bound themselves te send defendants orders only from first-class firms, who would pay to defendants a commission of one per cent per bushel on the wheat sold by defendants for them, of which commission the defendants agreed to .credit plaintiff’s -assignors with three-eighths, and that "the first-class firms were to pay all cable expenses. There is no breach of this agreement alleged, the only allegations in this respect being “ that said first-class firms have refused to pay defendants any •of said commissions or cable expenses.” Why they refused, or what bearing their non-payment has upon the agreement alleged does not appear, and, talcing all the allegations of the paragraph together, we do not find any defense stated, and for this reason the •demurrer to it should, as already intimated, have been sustained.

As to the counterclaim, we think the allegations are sufficient .and, therefore, the demurrer to it was properly overruled.

It follows that the judgment appealed from should be modified by sustaining the demurrer to the separate defense, with leave, as to this defense, to answer over on payment of costs, and, as so modified, the interlocutory judgment should be affirmed, without costs -to either party upon this appeal.

Present — O’Brien, P. J., Patterson, Ingraham, McLaughlin .and Laughlin, JJ.

Judgment modified as directed in opinion, and as modified .affirmed, without costs.  